Overview

The Migration Regulations 1994 (the Regulations), administered by the Australian Parliament, were updated in 2020 to address the specific problem arising from the Covid-19 pandemic's impact on international students' visas. Enacted through the Migration (LIN 20/099: Class of persons for student (Temporary) (Class TU) visa Applications) Instrument 2020, this legislation provides relief to former student visa holders whose visas were cancelled due to the pandemic's public health emergency. The policy objective of the instrument is to facilitate the continuation or resumption of studies for affected students, recognising the unique challenges posed by the global health crisis. The instrument repeals previous regulations and specifies classes of persons for whom the first instalment of the visa application charge is nil, streamlining the application process for these individuals. The enacting body responsible for this instrument is the Minister for Immigration, Citizenship, and Migrant Services, who was empowered to make the instrument under the Migration Act 1958.

Scope and Application

The Migration (LIN 20/099: Class of persons for student (Temporary) (Class TU) visa Applications) Instrument 2020 applies to former Student (Temporary) (Class TU) visa holders in Australia whose visas were cancelled due to the risk of a Public Health Emergency of International Concern, as designated by the World Health Organisation, which posed a threat to the health, safety, or good order of the Australian community or a segment of that community. This instrument is made under the authority of paragraph 1222(5)(a) of Schedule 1 to the Migration Regulations 1994 and serves to specify classes of persons eligible for a nil first instalment of the visa application charge. It replaces the earlier Migration (IMMI 18/013: Classes of persons for student (Temporary) (Class TU) visa) Instrument 2018, reflecting adjustments necessitated by the Covid-19 pandemic. The instrument's geographic and jurisdictional reach is confined to Australia, applying specifically to individuals within its territory who meet the criteria of the specified classes. The instrument does not require a Regulatory Impact Statement as advised by the Office of Best Practice Regulation and is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, hence a Statement of Compatibility with Human Rights is not mandated.

Key Provisions

The main operative sections of this Instrument (LIN 20/099) include provisions that allow the Minister to specify classes of persons to whom subparagraph 1222(2)(a)(i) of Schedule 1 to the Migration Regulations 1994 applies (section 1). This includes applicants who are in Australia and who are former Student (Temporary) (Class TU) visa holders whose visas were cancelled due to the Covid-19 pandemic (section 2). For applicants in these classes, the first instalment of the visa application charge amount is nil (section 2). The Instrument repeals the previous Migration (IMMI 18/013) Instrument 2018 (section 3). This Act imposes obligations on the Minister to specify classes of persons affected by the Covid-19 pandemic, particularly those who were former Student (Temporary) (Class TU) visa holders whose visas were cancelled. It also places a requirement on the Minister to consult with relevant departments and stakeholders, such as the Department of Health and industry stakeholders, to determine the scope and impact of the Public Health Emergency of International Concern on visa holders (section 4). Additionally, the Minister must ensure that the instrument is made in accordance with the Migration Regulations 1994 and the Acts Interpretation Act 1901 (section 5). There are no specific offences, penalties, or civil/criminal consequences outlined in the Instrument for breaches of its provisions. However, failure to comply with the Migration Regulations 1994 or any other relevant legislation could result in penalties or consequences under those Acts. The Instrument itself does not establish any new criminal or civil penalties beyond what is already provided for in the Migration Regulations 1994 or other relevant laws. The Instrument is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, and therefore a Statement of Compatibility with Human Rights is not required (section 6). The Instrument comes into effect on the day after its registration on the Federal Register of Legislation (section 7). The Office of Best Practice Regulation has been consulted and has advised that a Regulatory Impact Statement is not required for this Instrument (section 8).