EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 20/101: Arrangements for certain visa applications) Amendment Instrument 2020
(Subregulation 2.07(5))
- The instrument, which may be cited as LIN 20/101, is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations).
- The instrument amends Migration (LIN 19/209: Arrangements for Certain Skilled and Temporary Graduate Visa Applications) Instrument 2019 (F2019L01401) and Migration (LIN 19/211: Arrangements for Skilled Employer Sponsored Regional (Provisional) Visa Applications) Instrument 2019 (F2019L01449) made under subregulation 2.07(5) of the Regulations, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
- Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- LIN 19/209 operates to specify the approved form and the place and manner in which applications must be lodged for certain skilled and temporary graduate visas. The skilled and temporary graduate visas the instrument includes are:
- Subclass 887 (Skilled – Regional) visa;
- Subclass 189 (Skilled – Independent) visa;
- Subclass 190 (Skilled – Nominated) visa;
- Subclass 476 (Skilled – Recognised Graduate) visa;
- Subclass 485 (Temporary Graduate) visa;
- Subclass 489 (Skilled – Regional (Provisional)) visa;
- Subclass 491 (Skilled Work Regional (Provisional)) visa.
- LIN 19/211 operates to specify the requirements for making an application for a Subclass 494 visa. For the purposes of subitem 1242(1) of Schedule 1 to the Regulations, the instrument specifies the approved form for making a valid application. For the purposes of paragraph 1242(3)(a) of Schedule 1 to the Regulations, LIN 19/211 also specifies the manner in which an application must be made.
- LIN 19/211 also operates to specify, for the purposes of subitem 1242(6) of Schedule 1 to the Regulations, the circumstances for when subitem 1242(5) of Schedule 1 to the Regulations does not apply to an application.
- The purpose of LIN 20/101 is:
- for LIN 19/209 to update the place and manner of lodgement for applications for the Subclass 491 (Skilled Work Regional (Provisional)) visa in the Skilled Work Regional (Provisional) (Class PS) class of visa. This change ensures that all applicants can lodge a visa application in the same place and manner with no differentiation between primary and secondary applicants. It also provides a technical amendment to the item name of the class of visa due to a drafting error; and
- for LIN 19/211:
- update the definition of departmental email and repeal the definition of official departmental email address to provide clarity regarding an official departmental email address; and
- omit subsection 5(5) of the instrument and repeal the definition of subsequent applicant to ensure that all applicants for the Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa in the Skilled Employer Sponsored Regional (Provisional) (Class PE) class of visa, can lodge a visa application in the same place and manner with no differentiation between primary and secondary applicants.
- The changes to both instruments are administrative in nature and of a minor, machinery nature. Therefore consultation was not required.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25045).
- The officer who made the instrument was delegated the powers required to make the instrument in the Instrument Making Powers (Minister) Instrument 2019/228, signed on 12 September 2019.
- The instrument is made under subregulation 2.07(5), in Part 2, of the Regulations. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The whole of this instrument commences 14 March 2020.
Overview
The Migration Regulations 1994 were enacted to provide a legislative framework for the regulation of migration to Australia. The Migration (LIN 20/101: Arrangements for Certain Visa Applications) Amendment Instrument 2020 (F2020L00245) was introduced to address issues related to the administrative processes involved in the lodgement of certain visa applications, particularly those concerning skilled and temporary graduate visas. This instrument was made under subregulation 2.07(5) of the Migration Regulations 1994 by the relevant federal authority and aims to streamline the application process. The policy objective behind this amendment is to ensure uniformity in the lodgement processes for different categories of visa applicants, thus reducing complexity and improving efficiency within the migration administrative framework. The instrument provides minor, administrative changes to the existing regulations without requiring extensive consultation or a Regulatory Impact Statement, reflecting its technical nature.
Scope and Application
The Migration Regulations 1994 (LIN 20/101: Arrangements for certain visa applications) Amendment Instrument 2020 (Subregulation 2.07(5)) applies to the place and manner of lodgment for applications for certain skilled and temporary graduate visas, including Subclass 491 (Skilled Work Regional (Provisional)) and Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas. This amendment instrument is made under subregulation 2.07(5) of the Migration Regulations 1994, thereby extending its application across the Commonwealth of Australia. The instrument updates the processes for lodgment to ensure uniformity in the application process, removing any distinctions between primary and secondary applicants. It also provides technical amendments to definitions within the original instruments, clarifying terms such as departmental email and subsequent applicant. The changes are administrative in nature and do not require consultation or a Regulatory Impact Statement. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights. It commenced on 14 March 2020 and is applicable to all relevant visa applications made within the Commonwealth of Australia.
Key Provisions
The Migration Regulations 1994 (the Regulations) have been amended by the Migration (LIN 20/101: Arrangements for Certain Skilled and Temporary Graduate Visa Applications) Amendment Instrument 2020 (LIN 20/101) which makes several changes to the process of lodging certain visa applications. Specifically, LIN 20/101 amends the Migration (LIN 19/209: Arrangements for Certain Skilled and Temporary Graduate Visa Applications) Instrument 2019 (LIN 19/209) and the Migration (LIN 19/211: Arrangements for Skilled Employer Sponsored Regional (Provisional) Visa Applications) Instrument 2019 (LIN 19/211). These amendments are intended to standardise the application process for certain skilled and temporary graduate visas, and the skilled employer sponsored regional provisional visa, by removing distinctions between primary and secondary applicants in the place and manner of lodgement (subsection 2.07(5) of the Regulations).
The operative sections of LIN 20/101 include provisions that update the place and manner of lodgement for Subclass 491 (Skilled Work Regional (Provisional)) visa applications to ensure that all applicants can submit their applications in the same way (section 4 of LIN 20/101). Additionally, it corrects a drafting error in the name of the class of visa by renaming the Skilled Work Regional (Provisional) (Class PS) visa. For the Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa applications, LIN 20/101 removes the requirement for different lodgement procedures for primary and secondary applicants, ensuring uniformity in the application process (section 5 of LIN 20/101). It also updates the definition of departmental email and repeals the previous definition of official departmental email address to provide clarity.
The obligations imposed by LIN 20/101 require applicants for the affected visas to lodge their applications according to the updated specifications, without differentiation between primary and secondary applicants. This means that all applicants must follow the same procedures and use the same forms as outlined in the amended instruments. For Subclass 491 visa applicants, this includes lodging their applications in the same place and manner as other skilled and temporary graduate visa applicants. For Subclass 494 visa applicants, it means that both primary and secondary applicants must use the same lodgement process and email address as specified in the Regulations.
Failure to comply with the requirements set out in LIN 20/101 may result in the application being deemed invalid or incomplete. However, the instrument does not explicitly outline specific offences, penalties, or civil/criminal consequences for non-compliance. Instead, it focuses on streamlining and standardising the application process to ensure fairness and consistency in the visa application procedure. The primary consequence of non-compliance would likely be the rejection of an application or a request for additional information to rectify the non-compliance.