EXPLANATORY STATEMENT
Migration Regulations 1994
DETERMINATION – MEANING OF ENROLLED IN FULL-TIME STUDY AT AN EDUCATIONAL INSTITUTION 2015
- This Instrument is made under subregulation 2.06AAB(3) of the Migration Regulations 1994 (the Regulations).
2. The Safe Haven Enterprise (Class XE) visa (safe haven enterprise visa) was introduced as a class of temporary visas by the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Subsection 46A(1A) of the Migration Act 1958 (the Act) has the effect that an unauthorised maritime arrival in Australia who holds, or has ever held a safe haven enterprise visa (visa holder) is not prevented from making a subsequent valid application for visa subclasses prescribed in the Regulations, if the applicant satisfies any employment, educational, or social security benefit requirements as prescribed under subregulation 2.06AAB(2). Those requirements are satisfied by a visa holder, whether the applicant himself or herself under paragraph 2.06AAB(2)(a), or a member of the same family unit as the applicant under paragraph 2.06AAB(2)(b).
3. Under subparagraph 2.06AAB(2)(a)(ii), the educational requirement is satisfied if the visa holder, for a minimum period or periods totalling 42 months (whether consecutive or non‑consecutive), is enrolled in full‑time study at an educational institution in a regional area, as determined by this Instrument. Regional area is specified by separate legislative instrument.
4. The purpose and operation of the Instrument is to determine the meaning of enrolled in full‑time study for the purposes of subparagraph 2.06AAB(2)(a)(ii) of the Regulations. In order to be enrolled in full-time study, a visa holder must have enrolled and commenced in full-time study at a primary school, a secondary school (or other equivalent educational institution authorised to issue a Senior Secondary Certificate of Education in the relevant State or Territory tertiary institution), or an educational institution qualified to issue an Australian Qualifications Framework (AQF) qualification.
5. The visa holder must, for the purposes of study, be physically located in a regional area; this requirement applies for the entire period or periods of full-time study totalling a minimum of 42 months (whether consecutive or non-consecutive). Where the visa holder is enrolled in a primary or secondary school, that visa holder’s physical location may be at a regional school, or some other place in a regional area; for example, the visa holder may undertake external study (wholly or partly) provided that the visa holder’s physical location is in a regional area.
6. Where a visa holder has enrolled in full-time study an educational institution qualified to issue an AQF qualification, he or she cannot undertake study of a course that is wholly online, by correspondence or distance, or otherwise on an external study basis; the visa holder must have contact hours with the educational institution and those contact hours must take place in a regional area. If and when such a visa holder is undertaking study of a course that is partially online, by correspondence or distance, or otherwise on an external study basis, that visa holder must be also be located in a regional area.
7. Where a visa holder is enrolled in full-time study in an educational institution qualified to issue an AQF qualification, he or she must be enrolled in a course which leads to an AQF Level 1 qualification or higher. However, for each applicant of a specified visa, only one course of study undertaken by a safe haven visa holder leading to an AQF Level 1 qualification may be considered in determining whether the visa applicant has satisfied the educational requirement in subparagraph 2.06AAB(2)(a)(ii). In contrast, every course leading to an AQF Level 2 or higher qualification may be considered for the purposes of each visa application. Only one course at a time may be considered as enrolled in full-time study at an educational institution; if a visa holder undertakes more than one course concurrently for a time, only one of those courses will be considered for that time.
8. Consultation was undertaken before the Instrument was made with the Department of Education.
9. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 17300).
10. Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
11. The Instrument commences on 18 April 2015.
Overview
The Migration Regulations 1994 Determination – Meaning of Enrolled in Full-Time Study at an Educational Institution 2015, made under subregulation 2.06AAB(3) of the Migration Regulations 1994, was enacted to clarify the criteria for what constitutes full-time study for safe haven enterprise visa holders aiming to meet the educational requirements for subsequent visa applications. This Instrument aims to address the need for clear guidelines on the educational prerequisites for visa applicants who have previously held a safe haven enterprise visa, ensuring that their full-time study is genuinely undertaken in a regional area and meets the standards set by the Australian Qualifications Framework. Crafted by the Australian Government, the policy objective is to facilitate the integration of safe haven enterprise visa holders into Australian society by providing clear educational pathways that support their future employment and settlement.
Scope and Application
The Determination - Meaning of Enrolled in Full-Time Study at an Educational Institution 2015 applies to holders of a safe haven enterprise visa who are seeking to meet the educational requirements for eligibility in further visa subclasses under the Migration Regulations 1994. These requirements include being enrolled in full-time study at an educational institution for a minimum total period of 42 months within a regional area. The definition of "enrolled in full-time study" applies to primary and secondary schools as well as institutions qualified to issue an Australian Qualifications Framework qualification, and mandates that the individual must be physically located in a regional area for the entirety of their study. It specifies that for tertiary qualifications, courses that are entirely online or distance learning do not count, and if a course is partially online, the individual must still be physically present in a regional area during contact hours. The regional area is determined by separate legislation and the Instrument specifies that only one course at AQF Level 1 can be counted towards the requirement, whereas courses at AQF Level 2 or higher can be fully considered. This Determination commences on 18 April 2015 and is made under the Migration Regulations 1994, with consultation undertaken with the Department of Education, and exempt from disallowance under the Legislative Instruments Act 2003.
Key Provisions
The Migration Regulations 1994 Determination – Meaning of Enrolled in Full-Time Study at an Educational Institution 2015 provides the criteria for determining when a safe haven enterprise visa holder is considered enrolled in full-time study at an educational institution. This is relevant under subparagraph 2.06AAB(2)(a)(ii) of the Regulations (section 3). For a visa holder to meet the educational requirement, they must be enrolled and commence full-time study at a primary or secondary school, or an equivalent educational institution authorised to issue a Senior Secondary Certificate of Education, or at a tertiary institution that is qualified to issue an Australian Qualifications Framework (AQF) qualification (section 4). The physical location of the visa holder must be in a regional area for the entire duration of the full-time study, which must total a minimum of 42 months, whether consecutive or non-consecutive (section 5).
The Regulations impose several obligations on the parties involved. A visa holder must be enrolled and commence full-time study in an educational institution located in a regional area (section 5). If enrolled in a primary or secondary school, the visa holder's physical location must be in a regional area, even if they undertake external study (section 5). For tertiary institutions, the visa holder must be enrolled in a course leading to an AQF Level 1 qualification or higher and must have contact hours with the educational institution, with these contact hours taking place in a regional area (section 6). The visa holder cannot undertake a wholly online, by correspondence or distance, or external study course. If a course is partially online, by correspondence, distance, or external study, the visa holder must still be located in a regional area during the course (section 6).
In terms of breaches and consequences, the determination does not explicitly outline specific offences or penalties for non-compliance with the educational requirements. However, failure to meet the educational requirement as specified may impact the visa holder's eligibility for making a subsequent valid application for visa subclasses prescribed in the Regulations (subsection 46A(1A) of the Migration Act 1958). The specific consequences of non-compliance would depend on the outcome of any visa application process and the discretion of the relevant authorities. The Determination does state that it is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, and therefore, a Statement of Compatibility with Human Rights is not required (section 10).