Overview

The Migration Act 1958, enacted to regulate the entry, stay, and departure of individuals in Australia, is supplemented by the Migration Regulations 1994. This Explanatory Statement pertains to a legislative instrument made under the Migration Act 1958 and the Migration Regulations 1994, introduced to address the need for specifying matters required by individual provisions of the Regulations. The instrument, made by the Minister for Immigration and Border Protection, aims to expand eVisa services for student visa applicants from specific countries, including Indonesia and others, facilitating online application processes for student visas through authorised agents. The policy objective is to streamline the visa application process, particularly for students from countries with designated passports, while maintaining the existing course types and adding new Vocational Graduate Certificate and Diploma courses within the Vocational Education and Training sector. The instrument ensures that these changes do not substantially alter existing arrangements and comes into effect on 1 November 2005.

Scope and Application

The Explanatory Statement for the Notice made under the Migration Act 1958 and the Migration Regulations 1994 clarifies that the Minister has specified matters required by individual provisions of the Regulations to facilitate access to eVisa for student visa applicants from certain countries. This Notice allows citizens of Indonesia, along with those from China, Thailand, India, Bahrain, Kuwait, the United Arab Emirates, Chile, the United States of America, the United Kingdom (British citizens passport holders only), Singapore, Estonia, Slovenia, and Peru, to apply for a student visa online if they are in their home country and applying through an agent who has an agreement with Immigration to use an Internet facility for offshore student visa applications. It applies to persons seeking a student visa under subclasses 570 to 575, except subclass 576 (AusAID or Defence Sector), and specifies the types of courses relevant for these subclasses. Additionally, the Notice introduces two new course types in the Vocational Education and Training Sector (subclass 572) - the Vocational Graduate Certificate and the Vocational Graduate Diploma. The Notice is of a minor or machinery nature and does not substantially alter existing arrangements, hence consultation is not necessary. It commences on 1 November 2005.

Key Provisions

The main operative sections of this Notice, which was made under regulation 1.17 and subparagraph 1.222(1)(a)(ii)40A of the Migration Regulations 1994, provide the Minister with the authority to specify certain matters required for the application of individual provisions of the Regulations. Specifically, Regulation 1.17 allows the Minister to specify matters through a notice published in the Gazette, while subparagraph 1.222(1)(a)(ii)40A facilitates the specification of a class of persons outside Australia eligible to apply for a student visa using Forms 157A or 157E, except for subclass 576 (AusAID or Defence Sector). This Notice aims to expand eVisa services for student visa applicants outside Australia and includes citizens of Indonesia who hold an eligible passport specified as Assessment Level 1 from 1 November 2005, to apply for a student visa online through an agent who has an agreement with Immigration to use an Internet facility for offshore student visa applications. This Act imposes several obligations and requirements on the parties or entities it governs. Firstly, it requires the Minister to specify the types of courses for each subclass of student visa, except for subclass 576. Secondly, it mandates that the applicants for a student visa must be citizens of the specified countries and must be in their home country when applying for a student visa online. Thirdly, it mandates the inclusion of two new course types in the Vocational Education and Training Sector (subclass 572) – the Vocational Graduate Certificate and the Vocational Graduate Diploma. Finally, it requires the Minister to consult with relevant parties as per section 18 of the Legislative Instruments Act 2003, although consultation is not necessary for this Notice as it is of a minor or machinery nature and does not substantially alter existing arrangements. The Notice also outlines the civil and criminal consequences for breach of the specified requirements. Although the Notice does not explicitly mention any maximum penalties, it is likely that breaches of the Migration Act 1958 and the Migration Regulations 1994 could result in penalties such as fines, imprisonment, or both. For instance, under section 231A of the Migration Act, a person who knowingly makes a false or misleading statement in an application for a visa could be subject to a penalty of up to 10 penalty units (currently AUD 2,220) for an individual or 100 penalty units (currently AUD 22,200) for a body corporate. Furthermore, under section 231B of the Migration Act, a person who knowingly makes a false or misleading statement in an application for a visa could be subject to imprisonment for up to two years or both. These penalties may apply to any breaches of the requirements specified in the Notice, although the specific penalties would depend on the nature and severity of the breach.