IMMI 12/114
EXPLANATORY STATEMENT
Migration Regulations 1994
CLASS OF PERSONS
(PARAGRAPHS 050.613A and 051.611A)
- This Instrument is made under paragraph 050.613A and 051.611A of the Migration Regulations 1994 (“the Regulations”).
2. The Instrument revokes Instrument IMMI 11/078 signed on 27 March 2012.
3. Paragraphs 050.613A and 051.611A of the Regulations provide that condition 8101 (‘no work’) does not apply to a class of persons specified by the Minister in an instrument in writing.
4. The purpose of the Instrument is to allow the Minister to specify which classes of persons who have been granted a visa Class WE are not subject to condition 8101.
5. The instrument operates to make work rights discretionary for persons granted a BVE subclass 050 or a BVE subclass 051 visa under s195A of the Act. The Instrument does not apply to offshore entry persons granted a Bridging E (Class WE) visa (subclasses 050 or 051) under section 195A of the Act who enter Australia on or after 13 August 2012. Currently condition 8101 (‘no work’) is mandatory when conditions are imposed under paragraphs 050.613A(1)(a) and 051.611A(1)(c). However, paragraphs 050.613A(1)(b) and 051.611A(1)(c) provide that the Minister may specify a class of persons are not subject to having condition 8101 imposed on their visa. Therefore it is necessary to specify a class of persons in an instrument for the purposes of paragraphs 050.613A(1)(b) and 051.611A(1)(c). This means that clauses 050.617 and 051.612 operate to specify the discretionary conditions that may be imposed on the applicant’s visa.
6. Under subsection 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.
7. Consultation is unnecessary as, under section 18(1) of the Legislative Instruments Act 2003, the Instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
8. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required. (OBPR Ref: 14294)
9. The Instrument, IMMI 12/114, commences on the day after registration on the Federal Register of Legislative Instruments.
Overview
The Migration Regulations 1994 were enacted to provide a comprehensive legislative framework for the administration of Australia's migration laws. This legislation aims to fill the gap in the existing legal structure by offering detailed rules and procedures for the implementation of the Migration Act 1958. The explanatory statement for Instrument IMMI 12/114 indicates that it was introduced under the authority of the Migration Regulations 1994 to address the need for specifying certain classes of visa holders exempt from the mandatory condition 8101, which restricts work rights. This Instrument was developed by the Australian Government to allow the Minister to exercise discretion in determining which subclasses of Bridging Visa E (Class WE) visa holders are exempt from this work condition. The policy objective is to enable a more flexible approach in managing the work rights of specific visa categories, thereby facilitating better alignment with Australia’s immigration policy goals.
Scope and Application
The instrument IMMI 12/114, made under the Migration Regulations 1994, specifies that certain classes of persons granted a visa Class WE are exempt from the mandatory condition 8101, which restricts work rights. Specifically, the instrument enables the Minister to determine which subclasses of the Bridging E (Class WE) visa, namely subclass 050 and subclass 051, can have discretionary work rights attached. This means that the Minister can specify which groups of visa holders are not subject to the 'no work' condition, thereby allowing them to work under certain conditions as outlined in clauses 050.617 and 051.612 of the Regulations. Notably, this instrument does not apply to offshore entry persons granted a Bridging E (Class WE) visa under section 195A of the Act who enter Australia on or after 13 August 2012. The instrument operates under the authority of paragraphs 050.613A and 051.611A of the Regulations, which allow for the discretionary imposition of work conditions on visa holders, and it does not require a Human Rights Statement of Compatibility or a Regulatory Impact Statement as it is considered a minor, machinery instrument.
Key Provisions
The main operative sections of this Instrument, IMMI 12/114, are sections that provide the legal basis for specifying classes of persons who are exempt from condition 8101, also known as the ‘no work’ condition, when granted a visa under certain subclasses. Specifically, the Instrument operates under paragraphs 050.613A and 051.611A of the Migration Regulations 1994 (the Regulations) to allow the Minister to specify which classes of persons with a Bridging E (Class WE) visa (subclasses 050 or 051) are not subject to the mandatory ‘no work’ condition. This means that certain individuals who would otherwise have their visa conditions restricted from working can be granted discretionary work rights by the Minister through a written instrument. It is important to note that this Instrument does not apply to offshore entry persons granted a Bridging E (Class WE) visa (subclasses 050 or 051) who enter Australia on or after 13 August 2012.
The Instrument imposes obligations on the Minister to specify classes of persons who are exempt from the ‘no work’ condition when they are granted a visa under the relevant subclasses. This discretionary power allows the Minister to tailor the work rights for certain classes of persons, thereby providing flexibility in the visa application process. This flexibility is particularly important in ensuring that the visa conditions align with the specific needs and circumstances of the applicants. Additionally, the Instrument ensures that the Minister’s decisions in specifying such classes are made in accordance with the legal framework provided by the Regulations.
There are no explicit offences, penalties, or civil/criminal consequences stated in the Instrument for breach of its provisions. However, the Minister’s decision to specify certain classes of persons exempt from condition 8101 is subject to the legal constraints of the Regulations. Any misuse of this discretionary power could potentially lead to legal challenges, especially if the Minister’s decisions are found to be arbitrary or inconsistent with the provisions of the Regulations. Therefore, while the Instrument itself does not specify penalties, the legal framework under which it operates could lead to legal repercussions if the Minister’s decisions are not made in accordance with the law.