EXPLANATORY STATEMENT
Migration Regulations 1994
VISA SUBCLASSES FOR THE PURPOSES OF THE HEALTH REQUIREMENT
(Clauses 4005, 4006A and 4007)
- This Instrument is made under clauses 4005, 4006A and 4007 of Schedule 4 to the Migration Regulations 1994 (‘the Regulations’).
- This Instrument revokes Instrument number IMMI 11/032 signed on 20 June 2011. This change is necessary for the implementation of the SkillSelect online system.
- Public Interest Criteria 4005, 4006A and 4007 specify health requirements that attach to specific visa subclasses.
- The purpose of the Instrument is to specify the relevant health requirements for temporary visas that form a pathway to potentially obtaining a permanent visa. The Instrument has been made to include visa subclass 188 and visa subclass 489 visas in the list of current visa subclasses for the purpose of subparagraphs 4005(2)(b)(ii), 4006A(1A)(b)(ii) and 4007(1A)(b)(ii). Visa subclasses 160, 161, 162, 163, 164, 165 and 475 have been moved to the list of former visa subclasses to reflect their new condition as inoperative subclasses.
- The effect of the Instrument is that if an application is for a temporary visa of a subclass specified in the Instrument then the applicant’s health would be assessed for the same period for which a permanent visa is assessed, that is, the period commencing when the application is made.
- The Instrument specifies both existing subclasses and subclasses that have been closed to new applications in regulation.
- The Office of General Legal Counsel, the Australian Government Solicitor, and the Legal Opinions and Legislation sections within the Department were consulted prior to development of the Instrument. In addition, the Chief Medical Officer was also consulted.
- The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 13150).
- Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.
- The Instrument, IMMI 12/025, commences on 1 July 2012, immediately after the commencement of the Migration Amendment Regulation 2012 (No. 2).
Overview
The Migration Regulations 1994, as amended, address the evolving requirements for health assessments for visa applicants, particularly those on temporary visas that may lead to permanent residency. The explanatory statement for Instrument number IMMI 12/025, enacted in 2012, specifies that the health requirements for temporary visas now include subclasses 188 and 489, ensuring these applicants undergo health assessments for the same duration as those for permanent visas. This change aligns with the implementation of the SkillSelect online system and reflects the ongoing adjustments to visa subclasses, with certain subclasses such as 160, 161, 162, 163, 164, 165, and 475 being moved to a list of former subclasses. The Instrument, developed after consultations with legal and medical authorities, aims to ensure that health assessments are appropriately aligned with the visa application process.
Scope and Application
The Migration Regulations 1994, as amended by the Instrument IMMI 12/025, apply to individuals seeking temporary visas that potentially lead to permanent residency in Australia, specifically under the visa subclasses 188 and 489. The Instrument revokes previous regulations regarding health requirements for certain temporary visa subclasses and adjusts the list of current and former subclasses to align with changes such as the implementation of the SkillSelect online system. The health requirements specified in this Instrument ensure that applicants for certain temporary visas undergo health assessments for the same duration as those applying for permanent visas. This amendment was developed with consultation from legal and medical experts, and it exempts from disallowance under the Legislative Instruments Act 2003, thus not requiring a Human Rights Statement of Compatibility. The changes took effect on 1 July 2012, following the commencement of the Migration Amendment Regulation 2012 (No. 2).
Key Provisions
The key operative sections of the Instrument IMMI 12/025, made under the Migration Regulations 1994, concern the health requirements for temporary visas that can potentially lead to permanent residency. Specifically, sections 4005, 4006A, and 4007 have been amended to include visa subclass 188 and visa subclass 489 within the scope of health assessment periods. These sections dictate that the health assessment for applicants of these temporary visas will span the same duration as the assessment for a permanent visa, starting from the moment the application is submitted. Concurrently, visa subclasses 160, 161, 162, 163, 164, 165, and 475 have been removed from the list of active subclasses, reflecting their inoperative status.
The Instrument imposes clear obligations on the parties involved. Applicants for the specified temporary visas must undergo health assessments that align with the duration required for permanent visa applicants. This ensures a consistent and thorough evaluation process for all applicants seeking long-term residency. Furthermore, the Department of Home Affairs is obligated to implement these health assessment requirements in accordance with the regulations outlined in the Instrument. This includes ensuring that the health criteria are uniformly applied across all applicants, regardless of the subclass of visa they are seeking.
The Instrument also delineates specific consequences for breaches of the regulations. Although the Explanatory Statement does not explicitly mention civil or criminal penalties for non-compliance, it is implied that failure to adhere to the health assessment requirements could lead to the rejection of a visa application. Given that the Instrument is exempt from disallowance under section 44 of the Legislative Instruments Act 2003, it is likely that non-compliance could result in administrative penalties or legal actions as deemed necessary by the Department of Home Affairs. The precise penalties, however, would be governed by the overarching Migration Act 1958 and any related regulations.