EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Regulations 1994
Migration (Specification of ETA-eligible Passports) Amendment Instrument (LIN 22/040) 2022
1 The instrument, Departmental reference LIN 22/040, is made under regulation 1.11B(1) of the Migration Regulations 1994 (the Regulations).
2 The instrument amends IMMI 18/084 in accordance with subsection 33(3) of the Acts Interpretation Act 1901. That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.
3 The instrument commences on the day after registration on the Federal Register of Legislation, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
4 A visa applicant may make a valid application for an Electronic Travel Authority (Class UD) visa whilst in immigration clearance if, relevantly, the person has an ETA-eligible passport (see subregulation 2.07AB(2) of the Regulations). Subregulation 1.11B(1) provides that a passport is an ETA-eligible passport in relation to an application for a visa if it:
- is a valid passport of a kind specified in a legislative instrument by the Minister as an ETA-eligible passport (paragraph 1.11B(1)(a)); and
- the passport satisfies any conditions specified for it in the legislative instrument (paragraph 1.11B(1)(b)).
5 Relevantly, passports issued by the authorities of Taiwan are ETA-eligible passports unless they are passports purporting to be official passports or diplomatic passports.
6 The purpose of the instrument is to include an additional condition for passports issued by the authorities of Taiwan. The instrument additionally specifies a condition that a passport issued by the authorities of Taiwan must not be a ‘Taiwanese compatriot document’. A Taiwanese compatriot document may be issued to individuals that do not have a right of residency in Taiwan. A Taiwanese compatriot document is not recognised by Australia as a valid travel document.
Consultation
7 No consultation was done for this instrument. This is because the changes are minor and machinery in nature and do not substantially alter the existing arrangements.
Details of the instrument
8 Section 1 sets out the name of the instrument.
9 Section 2 provides for the commencement of the instrument on the day after registration.
10 Section 3 provides that IMMI 18/084 is amended as set out in Schedule 1 to the instrument.
11 Item 1 of Schedule 1 substitutes item 30 of the table in Schedule 1 to IMMI 18/084, which specifies the conditions for a passport issued by the authorities of Taiwan to be an ETA-eligible passport. This item adds a new condition that a passport issued by the authorities of Taiwan must not be a Taiwanese ‘compatriot document’ in order to be an ETA-eligible passport. This item also corrects minor drafting errors where references to ‘passport’ were made in the plural form.
Parliamentary scrutiny etc.
12 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because instruments made under Part 2 of, and Schedule 1 to, the Regulations are exempt under paragraph (b) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.
13 The instrument is appropriate to be exempt from disallowance as it concerns matters of an administrative nature. Updating legislative instruments that specify administrative matters allows for consistent internal management of the migration policy framework.
14 The instrument was made by the Minister, in accordance with subregulation 1.11B(1) of the Regulations.
Overview
The Migration (Specification of ETA-eligible Passports) Amendment Instrument (LIN 22/040) 2022 was enacted to amend the Migration Regulations 1994 and address a specific issue with passports issued by the authorities of Taiwan. This instrument, made under the authority of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, aims to refine the eligibility criteria for Electronic Travel Authority (ETA) visas by excluding certain Taiwanese passports that are not recognised as valid travel documents by Australia. The policy objective is to ensure that only legitimate travel documents are considered for ETA applications, thereby maintaining the integrity of Australia's migration policy framework. The instrument adds a new condition that excludes Taiwanese 'compatriot documents' from being considered ETA-eligible passports, while also correcting minor drafting errors in the existing regulations. This amendment does not require parliamentary scrutiny as it is considered an administrative update rather than a substantial policy change.
Scope and Application
The Migration (Specification of ETA-eligible Passports) Amendment Instrument (LIN 22/040) 2022, made under regulation 1.11B(1) of the Migration Regulations 1994, amends the existing legislative instrument to specify additional conditions for passports issued by the authorities of Taiwan to be recognised as ETA-eligible passports. This amendment ensures that such passports must not be Taiwanese 'compatriot documents', which are not recognised by Australia as valid travel documents. This legislative instrument applies to visa applicants who are in immigration clearance and seeking an Electronic Travel Authority (Class UD) visa, particularly those holding passports issued by Taiwan authorities. The amendment extends to correcting minor drafting errors and is designed to streamline the visa application process by clarifying the types of passports that meet the criteria for ETA eligibility. The instrument is exempt from disallowance under the Legislation Act and commenced on the day after registration on the Federal Register of Legislation.
Key Provisions
The main operative sections of this instrument (Section 3 of the explanatory statement) amend the existing regulation (IMMI 18/084) to include a new condition for passports issued by the authorities of Taiwan to be considered ETA-eligible passports (subregulation 1.11B(1)(b)). Specifically, it adds that a passport issued by the authorities of Taiwan must not be a 'Taiwanese compatriot document' (Section 11 of the explanatory statement). This change is intended to ensure that only valid and recognised travel documents from Taiwan are accepted for the purpose of applying for an Electronic Travel Authority (ETA) visa (Section 5 of the explanatory statement).
The Act imposes certain obligations on parties and entities it governs. Firstly, it requires that any passport issued by the authorities of Taiwan, to be considered an ETA-eligible passport, must not be a 'Taiwanese compatriot document' (Section 11 of the explanatory statement). This is in addition to the existing requirement that the passport must be a valid passport of a kind specified in a legislative instrument by the Minister as an ETA-eligible passport (subregulation 1.11B(1)(a) of the Regulations). The Act also imposes the obligation on the Minister to make this amendment under the authority granted by subregulation 1.11B(1) of the Regulations (Section 12 of the explanatory statement).
Any breach of the conditions specified in the Act for a passport to be considered an ETA-eligible passport could result in the visa application being invalid, and the applicant being ineligible for an ETA visa. However, the explanatory statement does not explicitly mention any specific offences, penalties, or civil/criminal consequences for breach. It is also exempt from disallowance under section 42 of the Legislation Act (Section 12 of the explanatory statement), which means that it does not require parliamentary scrutiny. This is because the changes are minor and machinery in nature and do not substantially alter the existing arrangements (Section 7 of the explanatory statement).