Overview

The Explanatory Statement for the Migration Regulations 1994 outlines an Instrument designed to facilitate the acceptance of securities issued by Australian State and Territory government authorities as designated investments for specific visa subclasses. Enacted in 2012, the primary objective of this legislation is to address a gap in the regulatory framework by expanding the scope of designated investments for applicants of various visas, including Subclass 131, 162, 165, 188, 405, 844, 888, 891, and 893. The enactment body responsible for this regulation is the Australian Parliament, with the policy objective being to support investment-based migration by broadening the types of acceptable investments for certain visa applicants. The Instrument was developed following consultations with all State and Territory governments, and it came into effect on 1 July 2012, following the commencement of the Migration Amendment Regulation 2012 (No. 2).

Scope and Application

The Migration Regulations 1994, as amended by the Instrument IMMI 12/064, extend the types of designated investments available to applicants for specific visa subclasses, specifically those listed in Schedule 2 parts 131, 162, 165, 188, 405, 844, 888, 891 and 893. This Act applies to applicants for these particular visas who seek to demonstrate their eligibility by investing in securities issued by Australian State or Territory government authorities. The geographic scope of the Act is national, as it applies across all states and territories in Australia. The Act broadens the scope of designated investments to include securities issued by State and Territory authorities, which had not previously been included. Notably, this Act does not specify any exclusions or exemptions, nor does it establish thresholds for the value of investments. It operates under the authority of the Minister who, pursuant to regulation 5.19A of the Migration Regulations 1994, can specify by Gazette Notice the securities in which an investment qualifies as a designated investment. This legislative instrument is effective from 1 July 2012, following the commencement of the Migration Amendment Regulation 2012 (No. 2).

Key Provisions

The main operative sections of this Instrument pertain to the regulation of designated investments under the Migration Regulations 1994. Regulation 5.19A (paragraph 2) specifies the Minister’s authority to designate securities issued by Australian State or Territory government authorities as acceptable investments for certain visa subclasses. This is achieved through a Gazette Notice which expands the list of visa subclasses for which these securities are considered designated investments (paragraph 4). The specific visa subclasses affected by this Instrument are 131, 162, 165, 188, 405, 844, 888, 891, and 893 (paragraph 3). This regulatory update is designed to allow more flexibility in the types of investments that can be made by applicants for these particular visas. The obligations imposed by this Instrument on the relevant parties include the requirement for State and Territory government authorities to issue securities that are recognised as designated investments under the specified visa subclasses. This is a procedural requirement that ensures the investments made by visa applicants meet the criteria set out in the Regulations. The authorities must ensure that the securities they issue are compliant with the provisions of the Instrument and the broader legislative framework. Breach of the requirements stipulated by this Instrument can lead to serious consequences. While the specific penalties are not detailed in the explanatory statement, breaches of the Migration Regulations 1994 generally can result in both civil and criminal penalties. Civil penalties can include fines, and in some cases, the revocation of the visa in question. Criminal penalties may apply for more severe breaches, potentially resulting in imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as the provisions of other relevant legislation.