EXPLANATORY STATEMENT
Migration Regulations 1994
ARRANGEMENTS FOR PROTECTION, HUMANITARIAN
AND REFUGEE VISAS 2016/024
(Items 1401, 1402, 1403 and 1404)
- Instrument IMMI 16/024 is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations).
- The Instrument revokes IMMI 15/045 (F2015L00562) under subsection 33(3) of the Acts Interpretation Act 1901, which states 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 operation of the Instrument is that for sections 45 and 46 of the Migration Act 1958 as an application is required for a Protection (Class XA) or a Refugee and Humanitarian (Class XB) or a Temporary Protection (Class XE) or a Safe Haven Enterprise (Class XE) visa, the Minister specifies under subregulation 2.07(5) of the Regulations, the requirement
- that the relevant approved form listed in the Schedule to the Instrument must be completed by an applicant for a Protection (Class XA) or a Refugee and Humanitarian (Class XB) or a Temporary Protection (Class XE) or a Safe Haven Enterprise (Class XE) visa; and
- of the relevant place listed in the Schedule to the Instrument at which an application for a Protection (Class XA) or a Refugee and Humanitarian (Class XB) or a Temporary Protection (Class XE) or a Safe Haven Enterprise (Class XE) visa must be made; and
- of the relevant way or the manner in which the application for a Protection (Class XA) or a Refugee and Humanitarian (Class XB) or a Temporary Protection (Class XE) or a Safe Haven Enterprise (Class XE) visa must be made.
4. The purpose of the Instrument is to streamline the lodgement for offshore clients by not limiting the Special Humanitarian Processing Centres (SHPC) in which those clients can lodge a visa application for a humanitarian or refugee visa. The Instrument allows an offshore client to lodge his or her visa application via post or delivered by courier service at either the Sydney or Melbourne SHPC, irrespective of the country the client is located in at the time of lodgement.
5. In accordance with section 15J(2)(e) of the Legislation Act 2003 consultation was not necessary. The Instrument is of a minor or machinery nature and does not substantially alter existing arrangements
6. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 20020).
7. 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.
8. The Instrument, IMMI 16/024, commences on 1 July 2016.
Overview
The Migration Regulations 1994 Arrangement for Protection, Humanitarian and Refugee Visas 2016/024, enacted to address administrative inefficiencies in the processing of applications for humanitarian and refugee visas, was issued by the Australian Government. This Instrument, made under subregulation 2.07(5) of the Migration Regulations 1994, revokes the previous instrument, IMMI 15/045, and streamlines the application process for offshore clients. The primary objective of this legislation is to facilitate the lodgement of visa applications for Protection (Class XA), Refugee and Humanitarian (Class XB), Temporary Protection (Class XE), and Safe Haven Enterprise (Class XE) visas by allowing offshore applicants to submit their applications via post or courier to the Sydney or Melbourne Special Humanitarian Processing Centres, regardless of their location at the time of application. This change aims to simplify and expedite the process for those seeking protection or humanitarian assistance, without necessitating consultation or a Regulatory Impact Statement as it is deemed minor and of a machinery nature.
Scope and Application
The Migration Regulations 1994 Arrangements for Protection, Humanitarian and Refugee Visas 2016/024, identified as Instrument IMMI 16/024, applies to individuals and entities seeking Protection (Class XA), Refugee and Humanitarian (Class XB), Temporary Protection (Class XE), or Safe Haven Enterprise (Class XE) visas under the Migration Act 1958. This regulation pertains to the administrative procedures that govern the application process for these specific visa categories. It mandates that applicants complete a relevant approved form and specifies the approved locations and methods for submitting their applications, allowing flexibility for offshore clients to lodge their applications at Special Humanitarian Processing Centres in Sydney or Melbourne via post or courier service, regardless of their geographical location. The regulation revokes the previous Instrument IMMI 15/045 and is made under the authority of the Migration Regulations 1994. It has a Commonwealth jurisdictional reach and is designed to streamline the application process for humanitarian and refugee visas. There are no specified exclusions or exemptions within this regulation, and it does not require consultation, a Regulatory Impact Statement, or a Statement of Compatibility with Human Rights, as deemed by the Office of Best Practice Regulation. The commencement date for this Instrument is 1 July 2016.
Key Provisions
The key operative sections of this Instrument, IMMI 16/024, pertain to the manner in which applications for certain visas can be submitted. Specifically, section 4 of the Instrument outlines that the relevant approved form must be completed by an applicant for a Protection (Class XA), a Refugee and Humanitarian (Class XB), a Temporary Protection (Class XE), or a Safe Haven Enterprise (Class XE) visa. Furthermore, section 4 specifies that the application must be made at a designated place and in a prescribed manner, as detailed in the Schedule to the Instrument. These provisions serve to standardise the application process for these types of visas.
The Instrument imposes specific obligations on applicants for these visas. Firstly, they must complete the correct form as specified in the Schedule. This ensures that all necessary information is provided in a consistent format. Secondly, applicants must submit their application at one of the approved locations, either the Sydney or Melbourne Special Humanitarian Processing Centres (SHPC). The Instrument also dictates the manner in which applications must be submitted, such as by post or via a courier service. These requirements aim to streamline the process and ensure that applications are received and processed efficiently.
In terms of consequences for non-compliance, the Instrument does not explicitly state any offences, penalties, or specific civil or criminal consequences for breaches. However, any failure to comply with the requirements for lodging an application, such as using an incorrect form or submitting the application to an unauthorised location, could result in the application being rejected or delayed. This could have significant implications for the applicant, particularly if they are seeking urgent humanitarian protection. The precise consequences of non-compliance would likely be determined on a case-by-case basis by the relevant authorities.