EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020
(Subitem 1225(5) of Schedule 1)
- The instrument, LIN 20/103, is made under the definitions of regional Australia and specified work in subitem 1225(5) of Schedule 1 of the Migration Regulations 1994 (the Regulations).
- The instrument repeals the Migration (IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia) Instrument 2017 (IMMI 17/018) (F2017L01032), also made under the same definitions in subitem 1225(5) of Schedule 1 to 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.
- The instrument operates to specify areas of regional Australia and kinds of specified work for the definition of those terms in subitem 1225(5) of Schedule 1 to the Regulations, for the purposes of Working Holiday (Temporary) (Class TZ) visa. Paragraphs 417.211(5)(a) and 417.211(6)(a) of Schedule 2 to the Regulations require that applicants for a second or third Subclass 417 (Working Holiday) visa (Subclass 417 visa) within Class TZ to have carried out a period or periods of specified work in regional Australia.
- One of the purposes of the instrument is to specify, at subsection 6(2), areas of Australia affected by bushfires occurring after 31 July 2019 and before 1 March 2020 as regional Australia.
- Another purpose of the instrument is to specify, at section 8, bushfire recovery work carried out after 31 July 2019 in an area specified by subsection 6(2), either as paid employment or voluntary work, as specified work. Bushfire recovery work is defined in section 4 of the instrument.
- Other than those changes, the instrument maintains the regional Australia areas and the kinds of work that were specified in IMMI 17/018.
- The specification of bushfire affected areas as regional Australia and bushfire recovery work as specified work enables Subclass 417 visa holders to assist in bushfire recovery efforts in the affected areas after 31 July 2019. As a result, these visa holders can count such work, either as paid employment or volunteer work, towards their eligibility for a second or third Subclass 417 visa application.
- Consultation was undertaken before the instrument was made with the National Bushfire Recovery Agency, the Department of Education, Skills and Employment and Commonwealth departments’ Secretaries though Inter-departmental Committee meetings. This consultation was in relation to the specification of bushfire affected areas as regional Australia and bushfire recovery work as specified work. For other parts of the instrument that remain unchanged from the previous instrument IMMI 17/018, no further consultation was required.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR reference 26175).
- 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.
- 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 instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020 was enacted to address the need for flexibility in the application of regional work requirements for Working Holiday visa holders in the context of the significant bushfires that affected parts of Australia between July 2019 and February 2020. This instrument, made under the Migration Regulations 1994, was introduced to specifically recognise certain areas as regional Australia and certain types of bushfire recovery work as specified work, thereby enabling Working Holiday visa holders to contribute to recovery efforts and count such work towards their eligibility for further Working Holiday visas. The enacting body for this instrument is the Australian Government, with the instrument being made in accordance with the provisions of the Acts Interpretation Act 1901. The policy objective is to facilitate the participation of Working Holiday visa holders in essential recovery activities in bushfire-affected areas, aiding in both regional recovery efforts and the visa holders’ eligibility for extended stays under the Subclass 417 visa.
Scope and Application
The Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020 applies to individuals who hold or are seeking to obtain a Working Holiday (Temporary) (Class TZ) visa, specifically Subclass 417 visa, by specifying areas of regional Australia and kinds of specified work that meet the eligibility criteria for a second or third visa. This instrument operates under the Migration Regulations 1994 and pertains to the geographic scope of regional Australia as well as certain types of work that can be counted towards visa eligibility. Notably, it includes areas affected by bushfires occurring between 31 July 2019 and 1 March 2020 as regional Australia, and bushfire recovery work in these areas as specified work. The instrument maintains the definitions of regional Australia and specified work that were previously outlined in the repealed Migration (IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia) Instrument 2017, except for the additions regarding bushfire-affected areas and recovery work. The instrument is applicable across Australia and is subject to the conditions and definitions stipulated in the Migration Regulations 1994. It does not require a Statement of Compatibility with Human Rights as it is exempt from disallowance under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. The instrument came into effect on the day after its registration on the Federal Register of Legislation.
Key Provisions
The Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020 amends the Migration Regulations 1994 to redefine the terms "regional Australia" and "specified work" in the context of the Working Holiday (Temporary) (Class TZ) visa, particularly for the Subclass 417 visa (section 1). This instrument clarifies the areas in regional Australia and the types of work that qualify for the eligibility of a second or third Subclass 417 visa. It repeals the previous instrument, IMMI 17/018, while maintaining the existing definitions for regional areas and types of work not related to bushfire recovery (section 2).
Under the new instrument, applicants for a second or third Subclass 417 visa must have completed specified work in regional Australia as required by paragraphs 417.211(5)(a) and 417.211(6)(a) of Schedule 2 to the Regulations. This work must now include bushfire recovery efforts in areas affected by bushfires occurring between 31 July 2019 and 1 March 2020, which are designated as regional Australia under subsection 6(2) of the instrument (section 6). Bushfire recovery work, whether paid or voluntary, qualifies as specified work under section 8, and its definition is provided in section 4 of the instrument.
The obligations imposed by this instrument are primarily on visa applicants who seek to meet the specified work requirement in regional Australia for eligibility for a second or third Subclass 417 visa. They must ensure that any work undertaken falls within the newly specified definitions, particularly in relation to bushfire recovery efforts in the designated areas. The instrument also imposes an obligation on the Department of Home Affairs to enforce these definitions and ensure compliance with the new specifications.
There are no direct offences, penalties, or civil/criminal consequences outlined in the instrument itself. However, failure to meet the specified work requirement could result in visa application rejection, which is a civil consequence under the Migration Act 1958. The primary focus of the instrument is to provide clarity and guidance rather than to impose penalties, ensuring that Working Holiday visa holders can contribute to bushfire recovery efforts while meeting their visa eligibility criteria.