EXPLANATORY STATEMENT

Migration Regulations 1994

MIGRATION REGULATIONS (SPECIFICATION OF REGIONAL AREAS FOR A SAFE HAVEN ENTERPRISE VISA) INSTRUMENT 2017/014

(Subclause 1404(4))

1. Instrument IMMI 17/014 is made under subclause 1404(4) of Schedule 1 to the Migration Regulations 1994 (the Regulations).
2. The instrument repeals IMMI 16/029 (F2016L01646) under subclause 1404(4) of Schedule 1 to the Regulations and in accordance with subsection 33(3) of the
   Acts Interpretation Act 1901, which states where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
3. The instrument operates to specify postcodes within Australia which are taken to be a regional area for the purpose of subparagraphs 2.06AAB(2)(a)(i) and (ii) of the Regulations and subclause 1404(4) of Schedule 1 to the Regulations. In particular, an application for a Safe Haven Enterprise (Class XE) visa (Class XE visa) must include an indication, in writing, that the applicant, or a member of the applicant’s family unit who is also an applicant for a Class XE visa, intends to study or work while accessing minimum social security benefits in a regional area specified in the instrument.
4. The purpose of the instrument is to specify areas for the first time in the Northern Territory. These areas are specified in Schedule 3 to the instrument and have effect from 27 October 2016. The instrument also expands regional areas in New South Wales and Queensland through the inclusion of the postcodes specified in Schedules 2B and 4B to the instrument.
5. The retroactive provisions in the instrument specify for the first time areas in the Northern Territory and increase the number of regional areas in New South Wales and Queensland in which applicants can express an intention to study or work while accessing minimum social security benefits if granted the Class XE visa. The power for the use of retroactivity in the instrument is contained in subsection 12(3) of the Legislation Act 2003 (Legislation Act) and the retroactive provisions do not conflict with subsection 12(2) of the Legislation Act.
6. The retroactive expansion of specified regional areas will not affect an applicant’s rights so as to disadvantage the person, nor impose liabilities on an applicant in respect of anything done or omitted to be done before the registration of the instrument. Rather, the retroactive provisions provide a benefit to Class XE visa applicants through the expansion of specified regional areas, providing increased opportunities for applicants by expanding their choice of regional areas in which to express their intention to work or study for the purposes of their Class XE visa application.  The retroactive provisions also benefit holders of the Safe Haven Enterprise visa who, for the purposes of subparagraphs 2.06AAB(2)(a)(i) and (ii) of the Regulations, have a wider range of regional areas in which they can be engaged in employment or enrolled in full-time study.
7. Areas in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia that were previously specified in the repealed instrument IMMI 16/029 are specified in Schedules 1, 2A, 4A, 5, 6, 7 and 8 of the instrument and commence the day after the instrument is registered.
8. Consultation was undertaken before the instrument was made with the relevant State and Territory Governments.
9. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 17300).
10. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 and pursuant to item 20 of the table in section 10 of the Legislation (Exemption and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
11. The instrument commences in part on the day after Registration on the Federal Register of Legislation, with Schedules 2B, 3 and 4B commencing on 27 October 2016 as discussed in paragraphs 4 and 5 of this Explanatory Statement.