EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 20/104: Subclass 462 (Work and Holiday) Visa – Specified Areas of Australia and Kinds of Work) Instrument 2020
(Regulation 1.15FA)
- The instrument, LIN 20/104, is made under regulation 1.15FA of the Migration Regulations 1994 (the Regulations).
- The instrument repeals the Migration (LIN 18/197: Areas of Australia and Kinds of Specified Work for Subclass 462 (Work and Holiday) visas) Instrument 2018 (LIN 18/197) (F2018L01539), made under regulation 1.15FA 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.
- The instrument operates to specify areas of Australia and kinds of work for the purposes of the definition of specified Subclass 462 work in regulation 1.03 of the Regulations. Paragraphs 462.218(a) and 462.219(a) of Schedule 2 to the Regulations require that applicants for a second or third Subclass 462 (Work and Holiday) visa to have carried out a period or periods of specified Subclass 462 work.
- One of the purposes of the instrument is to specify, in subsection 6(c), areas of Australia affected by bushfires occurring after 31 July 2019 and before 1 March 2020 as areas of Australia.
- Another purpose is to specify bushfire recovery work as work undertaken, including work undertaken on a volunteer basis, carried out after 31 July 2019 in an area specified in subsection 6(c), as a kind of work. Bushfire recovery work is defined in section 4 of the instrument.
- The last purpose is to specify construction work as a kind of work for areas specified in subsection 6(a) and subsection 6(b), in alignment with specified work for Subclass 417 (Working Holiday) visa.
- Other than those changes, the instrument maintains the areas of Australia and kinds of work that were specified in LIN 18/197.
- The specification of bushfire affected areas as areas of Australia and bushfire recovery work as a kind of work enables Subclass 462 visa holders to assist in bushfire recovery efforts in affected areas after 31 July 2019. As a result, these visa holders can count such work, including work undertaken as volunteer work, towards their eligibility for a second or third Subclass 462 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 areas of Australia, and construction and bushfire recovery work as kinds of work. For other parts of the instrument that remain unchanged from the previous instrument LIN 18/197, 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 20/104: Subclass 462 (Work and Holiday) Visa – Specified Areas of Australia and Kinds of Work) Instrument 2020 was introduced to address the need to specify areas of Australia and kinds of work for the purposes of the definition of specified Subclass 462 work in the Migration Regulations 1994. This instrument was enacted by the Commonwealth of Australia under the authority of the Migration Act 1958. Its primary policy objective is to enable Subclass 462 visa holders to contribute to bushfire recovery efforts in areas affected by bushfires occurring after 31 July 2019. The instrument specifies these bushfire-affected areas and bushfire recovery work as kinds of work, allowing eligible visa holders to count such work, including volunteer work, towards their eligibility for a second or third Subclass 462 visa application. This measure was developed following consultation with relevant agencies, including the National Bushfire Recovery Agency and the Department of Education, Skills and Employment.
Scope and Application
The Migration (LIN 20/104: Subclass 462 (Work and Holiday) Visa – Specified Areas of Australia and Kinds of Work) Instrument 2020 (LIN 20/104) applies to applicants for a second or third Subclass 462 (Work and Holiday) visa, specifically focusing on the areas of Australia and the kinds of work eligible for visa eligibility purposes. It operates under the Migration Regulations 1994, and its purpose is to specify the areas affected by bushfires that occurred after 31 July 2019 and before 1 March 2020 as eligible areas, and bushfire recovery work undertaken after this period, including volunteer work, as eligible kinds of work. This instrument also aligns construction work in specified areas with the kinds of work eligible for Subclass 417 (Working Holiday) visa. The instrument is made under the Migration Regulations 1994, and it maintains the unchanged areas and kinds of work specified in the previous instrument, LIN 18/197, with the exception of the new specifications for bushfire affected areas and recovery work. The instrument is exempt from disallowance and therefore does not require a Statement of Compatibility with Human Rights.
Key Provisions
The key provisions of the instrument, LIN 20/104, pertain to the specification of areas of Australia and kinds of work for the purposes of the definition of specified Subclass 462 work in regulation 1.03 of the Migration Regulations 1994 (subsection 462.218(a) and 462.219(a)). This instrument specifies certain areas of Australia and kinds of work that applicants for a second or third Subclass 462 (Work and Holiday) visa can engage in. Specifically, it includes areas affected by bushfires occurring after 31 July 2019 and before 1 March 2020, as well as bushfire recovery work undertaken in these areas, and construction work in specified areas, aligning with specified work for Subclass 417 (Working Holiday) visa. These provisions allow visa holders to contribute to bushfire recovery efforts and count such work towards their eligibility for a subsequent visa.
The instrument imposes several obligations and requirements on parties involved. Firstly, it mandates the specification of bushfire-affected areas in Australia and bushfire recovery work, ensuring that these areas are clearly defined and identifiable. It also requires that the kinds of work eligible for visa purposes are explicitly stated, including construction work in specified areas. This ensures clarity and compliance with the eligibility criteria for a second or third Subclass 462 visa. Additionally, the instrument maintains the areas and kinds of work specified in the previous instrument, LIN 18/197, unless otherwise amended. The specification of these areas and work types is critical for visa applicants to understand which regions and activities qualify under the regulations.
There are no specific offences, penalties, or civil/criminal consequences outlined in the instrument itself. However, the Migration Regulations 1994 (Regulation 1.03) and related provisions of the Migration Act 1958 provide a framework within which non-compliance with visa requirements can lead to penalties. For instance, providing false or misleading information to obtain a visa can result in civil or criminal penalties, including fines and imprisonment. The instrument, by specifying eligible areas and work types, indirectly ensures that applicants comply with these broader regulations to avoid such consequences.