Migration Regulations 1994 - Specification of a Class of Persons - IMMI 12/127

Overview

The Migration Regulations 1994, as amended by the Migration Regulations 1994 - Specification of a Class of Persons - IMMI 12/127, were enacted to address the specific needs of non-citizens who have been employed in sensitive roles in conflict zones and have faced or are facing potential harm as a result of their employment with Australian government agencies. This legislative instrument was introduced to ensure that these individuals are recognised and provided with the necessary support and protection, including the opportunity to apply for a class XB (Refugee and Humanitarian) visa. Enacted by the Minister for Immigration and Citizenship, Chris Bowen, under the authority granted by the Migration Act 1958, the policy objective is to provide a clear pathway for these vulnerable non-citizens to seek refuge in Australia, acknowledging the risks they have endured and their ongoing need for protection. The regulations specify the criteria for inclusion in the class of persons eligible for these protections, focusing on those who have served with Australian government entities in high-risk environments such as Iraq and Afghanistan.

Scope and Application

The Migration Regulations 12/127 applies to non-citizens who have been assessed as being at risk of harm due to their employment in specific capacities and locations. This includes individuals who were employed with the Department of Foreign Affairs and Trade (DFAT) at the Australian Embassy in Baghdad, Iraq, since 1 May 2003, or those who worked in a private civilian capacity with the Australian Defence Force (ADF) in Iraq between 17 March 2003 and 15 May 2009, or those who collaborated with the ADF in Iraq with specific groups such as the Overwatch Battle Group (West) or the Australian Army Training Team. Additionally, the regulations cover non-citizens employed in a private civilian capacity with the ADF in Iraq after 15 May 2009. The Act also specifies non-citizens employed with DFAT, ADF, the Australian Agency for International Development (AusAID), or the Australian Federal Police (AFP) who have been assessed as being at risk due to their support to Australia’s whole of Government mission in Afghanistan, such as interpreters, instructors, and project staff in Uruzgan Province, provided they are not nationals of any country other than Afghanistan. The regulations set out timelines for these individuals to seek certification from relevant agency Ministers. The application of these regulations is national, and they extend to subordinate instruments for further specification and amendment.

Key Provisions

The main operative sections of this legislation (IMMI 12/127) detail the specific categories of non-citizens who are eligible for special visa consideration. Section 2 specifies non-citizens who were employed with the Department of Foreign Affairs and Trade (DFAT) in Iraq since 1 May 2003, or with the Australian Defence Force (ADF) between 17 March 2003 and 15 May 2009, and who have since ceased employment, sought certification from the Minister of Defence by 15 May 2009, and applied for a class XB visa by 31 December 2009. Section 3 further specifies that this includes non-citizens employed with DFAT, ADF, Australian Agency for International Development (AusAID), or the Australian Federal Police (AFP) who were assessed to be at risk of harm due to their support of Australia’s mission in Afghanistan, and who are not nationals or citizens of another country other than Afghanistan. These individuals must seek certification from the relevant agency Minister within specified timeframes, with possible extensions if exceptional circumstances exist. The obligations imposed by this legislation on the parties and entities it governs are primarily administrative and procedural. Non-citizens who meet the criteria must ensure they have applied for the relevant certification from the Minister of Defence or the relevant agency Minister within the specified timeframes. They must also provide any necessary documentation to substantiate their claims for certification. Additionally, the relevant Ministers are obligated to assess these applications and make determinations based on the provided evidence and the criteria outlined in the regulations. For breaches of these provisions, the legislation does not explicitly state any specific offences or penalties. However, failure to comply with the certification requirements or the application process could potentially lead to visa application rejections or other administrative consequences. Such consequences might include delays in processing applications or even the denial of a visa. It is important to note that while the legislation itself does not detail specific penalties, breaches of visa conditions or misrepresentations in visa applications can attract penalties under the Migration Act 1958, which may include fines or imprisonment.