EXPLANATORY STATEMENT
Issued by authority of the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Act 1958
Migration (Subclass 192 (Pacific Engagement) Visa Pre-application Process) Determination
(LIN 24/011) 2024
- This instrument, departmental reference LIN 24/011, is made by the Minister for Immigration, Citizenship and Multicultural Affairs under subsection 46C(14) of the Migration Act 1958.
- The instrument commences the day after the instrument is registered and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
3. The purpose of the instrument is to make a determination in relation to visa pre-application processes for the random selection by ballot of registered participants who are citizens of Pacific island countries and Timor-Leste to which a visa pre-application process relates. Selected registrants will be able to apply for a permanent Subclass 192 (Pacific Engagement) visa.
Background
4. The Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 (the Amendment Act) amended the Migration Act 1958 (the Migration Act) to insert subsection 46(4A) which provides that a requirement for making a valid application for a visa of a specified class may be that the applicant was selected in accordance with an applicable visa pre-application process conducted under subsection 46C(1).
5. Subsection 46C(1) of the Migration Act provides that the Minister may arrange for a visa pre-application process to be conducted in relation to one or more visas if regulations are in force prescribing criteria of a kind mentioned in subsection 46(4A).
6. Subsection 46C(2) of the Migration Act provides that a visa pre-application process must involve the registration of persons as registered participants in the process, so long as those persons meet the eligibility requirements set out in the determination relating to the process, and registered participants being selected at random to apply for the visa.
7. Subsection 46C(13) of the Migration Act provides that a visa pre-application process must not be conducted under subsection 46C(1) unless a determination made by the Minister under subsection 46C(14) is in force in relation to the conduct of the visa pre-application process. Subsection 46C(14) provides that the Minister may by legislative instrument determine rules that apply to a specified visa pre-application process.
8. Subsection 46C(15) of the Migration Act provides that a determination made under subsection 46C(14) must deal with eligibility requirements for a person to register as a registered participant in a visa pre-application process, and may deal with any other matters including registration, the period within which persons may register (‘the registration open period’), the period within which selections may be made (“the selection open period”), the withdrawal of a person’s registration, the circumstances under which registration lapses, and the selection of registered participants.
9. The Migration Amendment (Subclass 192 (Pacific Engagement) Visa) Regulations 2024 amended the Migration Regulations 1994 (the Migration Regulations) to introduce a new Subclass 192 (Pacific Engagement) visa (Pacific Engagement visa). A requirement for making a valid application by an applicant seeking to satisfy the primary criteria for grant of the visa is that the applicant must be a selected participant in an applicable visa pre-application process (subitem 1140(4) table item 1, in Schedule 1 to the Migration Regulations). This is a criterion of a kind mentioned in subsection 46(4A) of the Migration Act.
10. The Pacific Engagement visa will be available to citizens of Pacific island countries and Timor-Leste who register to participate in a visa pre-application process and are randomly selected in that ballot to apply for the visa. The visa will permit visa holders to reside and work in Australia permanently with the object of strengthening ties between Australia and the Pacific island countries and Timor-Leste.
11. The purpose of the instrument is to set out the eligibility requirements for registration and other rules that apply to the conduct of a visa pre-application process for a Pacific Engagement visa. Other aspects of the visa pre-application process are managed administratively. There will be a separate visa pre-application process for each country with which Australia has negotiated and concluded an agreement to participate in the program. Persons who are nationals of a relevant country and meet certain other requirements may register to participate in the ballot process for their country of citizenship.
Consultation
12. Consultation in relation to the determination was undertaken with the Department of Foreign Affairs and Trade. Consultation was also undertaken with the Department of Employment and Workplace Relations, the Department of Prime Minister and Cabinet, the Department of Social Services, the Department of Education and the Department of Finance in relation to the development of the Pacific Engagement visa program and key eligibility requirements. This consultation accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act).
13. The Office of Impact Analysis (OIA) was also consulted and considered that all impact analysis requirements have been acquitted. No further regulatory impact statement was required. The OIA reference number is OBPR22-02320.
Statement of Compatibility with Human Rights
14. A Statement of Compatibility with Human Rights has been prepared in relation to the instrument. The Statement concludes that the instrument is compatible with human rights because it promotes the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. The Statement is included at Attachment A.
Details of the instrument
15. Details of the instrument are set out in Attachment B.
Parliamentary scrutiny
16. Subsection 46C(20) of the Migration Act provides that the determination is a disallowable legislative instrument for the purposes of section 42 of the Legislation Act 2003.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration (Subclass 192 (Pacific Engagement) Visa Pre‑application Process) Determination (LIN 24/011) 2024
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Migration (Subclass 192 (Pacific Engagement) Visa Pre-application Process) Determination (LIN 24/011) 2024 (the PEV Determination) is made under subsection 46C(14) of the Migration Act 1958 (the Migration Act) and sets out the rules that apply in relation to the conduct of the Pacific Engagement Visa (PEV) pre-application process under subsection 46C(1) of the Migration Act, also referred to in this Statement as a ballot. The framework for the visa pre-application process was created by amendments to the Migration Act made by the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 (the Amendment Act) which was assented to on 26 October 2023 and commenced on 29 March 2024.
The PEV Determination is part of the legislative package that implements the Government’s election commitment to boost Pacific permanent migration. The Government is creating the PEV program to offer permanent residency to eligible citizens of participating Pacific island countries and Timor-Leste, and members of their family unit. Prospective PEV applicants must be a citizen of a country to which a PEV pre-application process relates, with entrants successfully drawn in the random ballot and their immediate family members able to apply for a PEV. The PEV itself is being created by amendments to the Migration Regulations 1994 (the Migration Regulations) made by the Migration Amendment (Subclass 192 (Pacific Engagement) Visa)) Regulations 2024 (the Amendment Regulations).
The implementation of the PEV will support the Government’s commitment to deepen Australia’s connections with the Pacific and will significantly increase the number of nationals of Pacific island countries and Timor-Leste who have access to permanent residency in Australia. There is currently no dedicated permanent residency pathway for nationals of Pacific island countries and Timor-Leste. Up to 3,000 Pacific Engagement Visas (including members of the family unit of primary applicants) will be allocated annually through a ballot process. The PEV will be open to migrants who are nationals of a country to which the PEV pre-application process relates, located either in or outside Australia, providing equitable and fair access to Australian permanent residency for them and their immediate family members. The numbers of these permanent visas would be allocated in addition to Australia’s overall annual permanent migration program.
Section 46C(14) of the Migration Act, as amended by the Amendment Act, provides that the Minister may, by disallowable legislative instrument, determine the rules that apply in relation to the conduct of a visa pre-application process for one or more specified visas where the use of a visa pre-application process is a validity requirement of that visa.
The matters that may be dealt with in a determination under section 46C(15) of the Migration Act, as amended by the Amendment Act, is non-exhaustive, but may include rules that must be met for eligibility to register to take part in the process, how the registration must be made, the information to be provided when registering for the process, the registration open period, the selection open period, as well as any extensions of those periods, withdrawals of registrations, how registrations may lapse and the selection of registered participants in visa pre-application process.
Further, the Amendment Regulations amend the Migration Regulations to provide that, to make a valid application for a PEV, an applicant must be selected in accordance with the applicable visa pre-application process.
In accordance with the above provisions, the PEV Determination sets out the rules that must be met in order for a person to register as a registered participant for the PEV pre-application process. To register as a registered participant in the PEV pre-application process, the applicant must:
- register using a computer program made available on the internet;
- declare that they meet the eligibility requirements for that process;
- not be already registered as a participant in that process; and
- register within the registration open period for that process.
The eligibility requirements for registration in the applicable PEV pre-application process covered in the PEV Determination reflect some of the key objective eligibility requirements to make an application for the PEV and require the applicant to satisfy the following criteria at the time of registration in that process:
- hold a valid passport issued by the country to which that process relates;
- not be a citizen of New Zealand;
- be born in, or have a parent that was born in, a country specified in Schedule 1 to the PEV Determination;
- be aged at least 18 and no more than 45 at the beginning of the registration open period for that process.
Under the PEV Determination, a PEV pre-application process must be in relation to a single country, and the Minister must cause the country to which a PEV pre-application process relates to be published on the Department’s website. Multiple PEV pre-application processes can be conducted, including concurrent processes in relation to different countries.
Country participation in the PEV program will be based on several factors including population size, diaspora in Australia, existing migration opportunities, expected demand and participating country views. The Department of Foreign Affairs and Trade (DFAT) is managing the consultations with Pacific island countries and Timor-Leste to determine interest in the PEV program.
The PEV pre-application process will be open for a finite amount of time and the registration open period for the process will be published on the Department’s website each year prior to the registration open period. The registration open period for the PEV pre-application process may be extended for a further period, or further periods, and any extension of the registration open period will also be published on the Department’s website.
All registrations successfully entered into the PEV pre-application ballot process will be placed in a randomised draw, from the relevant country pool of ballot entries. Registrations will be randomly selected for that process using a computer program within the finite selection open period for the process. The selection open period for the PEV pre-application process will be published on the Department’s website, along with any extensions of the selection open period.
Participants selected through the PEV pre-application ballot process will be given written notice of their selection as soon as practicable after they have been selected in that process, providing them with the opportunity to lodge an application for a PEV. The notice will specify the date by which they must make their application for a PEV, which will be at least 30 days after the date of the notice. Failure to lodge a valid PEV application in the period specified in the notification will result in the expiry of the offer.
All registrations entered for the PEV pre-application processes will automatically expire at the earliest of:
- the end of the selection open period for that process;
- when the person is selected (if the person is selected as a selected participant for that process);
- when the withdrawal is lodged (if the person withdraws their registration as a participant in that process); or
- when the person dies (if the person dies before the person is selected as a selected participant for that process).
Unsuccessful registered participants will not be notified when their registration expires.
A registered participant in an applicable PEV pre-application process may withdraw their registration as a participant in that process using a computer program made available on the internet for that purpose.
Applicants will be required to declare in their registration form the number of members of their family unit that they intend to include in the PEV application if successful in the ballot. This is important to ensure that the 3,000 visa places available under the PEV can be accurately managed.
The applicant will also need to pay the charge for registration in the PEV pre-application process at the time of registration. If the applicant does not pay the registration charge, the applicant is taken never to have been registered as a registered participant in the visa pre-application process. The amount of charge payable for each registration in the PEV pre-application process is AUD25, which is prescribed in the Migration (Visa Pre-application Process) Charge Regulations 2024 (the Charge Regulations).
Human rights implications
This Determination engages the following rights:
- the rights of equality and non-discrimination in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
- The rights relating to privacy in Article 17 of the ICCPR.
Rights of equality and non-discrimination
Article 2(2) of the ICESCR states:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Setting visa pre-application ballot eligibility requirements that depend on a number of factors, including age and country of citizenship, may engage the above rights to non-discrimination.
In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that:
The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [ICCPR].
Similarly, in its General Comment on Article 2 of the ICESCR, the UN Committee on Economic, Social and Cultural Rights has stated (at 13) that:
Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the [ICESCR] rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.
Neither the ICCPR nor the ICESCR give a right for non-citizens to enter Australia for the purposes of seeking residence or employment. The UNHRC, in its General Comment 15 on the position of aliens under the ICCPR, stated that:
The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the [ICCPR] even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.
Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the [ICCPR].
As such, Australia is able to set requirements for the entry of non-citizens into Australia, and does so on the basis of reasonable and objective criteria.
The use of a ballot to enable the random selection of applicants for this visa program is appropriate because demand for the PEV is expected to exceed the number of PEVs available annually under Australia’s migration program. In addition, the aim of the PEV program is to provide a fair and equitable pathway to Australian permanent residence for nationals of Pacific island countries and Timor-Leste of all skill, experience and education levels, which can be best achieved through the use of a ballot. The Statement of Compatibility that accompanies the Amendment Regulations provides further information as to why the use of a visa pre-application process is necessary, reasonable and proportionate to the intent of the PEV program.
The PEV Determination states that a person must register as a participant in the PEV pre-application process using a computer program made available on the internet. This may raise the above rights to non-discrimination relating to accessibility to persons who may not be able to use the computer program or may have limited access or ability to use the internet to participate in the ballot, including because of a disability.
The PEV Determination does not specifically require the visa pre-application process registration to be lodged personally by the registered participant. Assistance may be sought by a third party in line with other visa application processes to ensure all prospective applicants have access and can be assisted to participate in the PEV pre-application process.
The use of a computer program for registration and random selection of registered participants helps to manage the integrity of the process, such as ensuring only one ballot entry per person, and also is the most fair and equitable way to select participants in the ballot.
The PEV Determination also specifies eligibility requirements for registration as a registered participant in the PEV pre-application ballot process. These eligibility requirements may engage the above rights to non-discrimination as eligibility to apply for a PEV is limited to those who are randomly selected in the ballot process after meeting the eligibility requirements for registration in that process.
The eligibility requirements for registration in the PEV pre-application process include that the person must hold a valid passport issued by the country to which the visa pre-application process relates, not be a citizen of New Zealand, must have been born in, or have a parent that was born in, a specified country in Schedule 1 to the PEV Determination, and must be aged at least 18 and no more than 45 at the beginning of the registration open period for the PEV pre-application process.
The eligibility requirements covered by the PEV Determination are part of the framework that is intended to provide access to the benefits of permanent residency in Australia for nationals of Pacific island countries and Timor-Leste, for whom there was no dedicated permanent residence pathway available, in a way that is fair and equitable.
As the PEV program is aimed at deepening Australia’s ties with the Pacific, applicants must hold a valid passport issued by the country to which the visa pre-application process relates. Applicants must also not be a citizen of New Zealand, as dual nationals of New Zealand already have access to residence in Australia under the Special Category visa. Further, from 1 July 2023 New Zealand citizens have a direct pathway to Australian citizenship.
The Minister must cause the country to which a PEV pre-application process relates to be published on the Department’s website in accordance with the PEV Determination and participation in the program will be subject to a range of factors including population size, diaspora in Australia, existing migration opportunities, expected demand and participating country views. DFAT is managing the consultations with Pacific island countries and Timor-Leste to determine interest in the PEV program.
To the extent that the ballot eligibility requirements for the PEV differentiate on the basis of nationality or citizenship, this is reasonable and proportionate to the meeting of a legitimate Government objective. This is because the creation of the PEV is aimed at deepening Australia’s connections with Pacific island countries and Timor‑Leste; supporting wider mobility within the region, thereby contributing to Pacific economies; and providing opportunities for cultural, business, educational and skills exchange, in support of a peaceful, prosperous and resilient Pacific region.
Applicants must also be able to demonstrate longstanding ties to the Pacific region by either being born in, or have a parent that was born in, one of the specified countries in Schedule 1 to the PEV Determination.
The specified countries in Schedule 1 to the PEV Determination are not required to be a country to which a PEV pre-application process relates, and will include all eligible countries (the Federated States of Micronesia, Fiji, Kiribati, Nauru, Palau, Papua New Guinea, the Republic of the Marshall Islands, Samoa, Solomon Islands, Timor-Leste, Tonga, Tuvalu, Vanuatu), as well as Australia and New Zealand.
The inclusion of Australia and New Zealand in this list recognises that eligible applicants may have been born outside of their country of citizenship on genuine and compelling grounds, such as medical reasons or to access birthing facilities, but have still been able to maintain longstanding and close ties with the Pacific.
This requirement is to ensure that access to the PEV program is not provided to applicants without close ties to the region who may have recently obtained citizenship of a country to which a PEV pre-application process relates. This is reasonable and proportionate to meet the objectives of the PEV program, as it is aimed at strengthening Australia’s ties with the Pacific region. This does not prevent other persons from being able to access residence in Australia through other migration programs currently open to all nationalities.
The PEV Determination also requires the primary applicant to be at least 18 and no more than 45 years at the beginning of the registration open period of the applicable visa pre-application process in order to register as a registered participant in that process. There is no specific age requirement for members of the primary applicant’s family unit, although children must generally be aged under 18 or be otherwise dependent, in accordance with the existing definition of ‘member of the family unit’ in the Migration Regulations.
The PEV program will target a specified age cohort of migrants who will be in a position to benefit most from the program. The reason is that the success of the program is contingent on ensuring economic and social cohesion of PEV migrants in the Australian community and having access to employment in Australia is a key indicator of success. Migrants who arrive at an older age have lower rates of labour force participation compared to permanent migrants who arrive at a relatively young age.[1] For this reason, the specified age cohort for the PEV has been identified as having greater prospects of achieving positive settlement outcomes in Australia, and therefore the differentiation is reasonable and proportionate to ensure the purpose of the program is achieved.
The eligibility requirements for registration in the PEV pre-application process are directed to providing further opportunities for eligible Pacific island countries and Timor-Leste who want to live and work in Australia on a permanent basis. The amendments do not adversely affect the existing arrangements for visa holders and applicants who hold other passports or do not meet the other requirements for registration in the ballot, as the allocation of visa places under the PEV will be in addition to Australia’s overall annual permanent migration program.
The ballot eligibility requirements also align with key objective visa eligibility requirements that are prescribed in Schedule 1 to the Migration Regulations, as amended by the Amendment Regulations. The reason for having eligibility requirements for registration in the PEV pre-application process is to mitigate circumstances of participants who draw a place in the ballot not meeting the visa requirements of the PEV.
The requirements a person must meet to be eligible to register in the visa pre-application process are also objective and capable of being randomly selected by a computer program for that process. The ballot registration process requires persons registering to declare that they meet the eligibility requirements by responding to a number of questions in order to submit their registration and enter the ballot. Any person who is not eligible to register for the ballot based on objective information declared in their registration form will not be accepted and will not be able to submit their registration.
Persons who are unsuccessful in a ballot may register for future ballots for which they are eligible, or consider other visa options that may be available to them to enter and/or remain in Australia.
The visa pre-application process aims to promote equitable access to the PEV as it has limited places that may be in high demand, and differentiation in terms of who and how a person may access that process is based on reasonable and objective criteria that are proportionate to the aims of the PEV program, consistent with the rights of equality and non-discrimination.
Rights relating to privacy
Article 17 of the ICCPR states:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The PEV Determination sets out the requirements for the conduct of the PEV pre-application process, including that the person registers as a participant in that process using a computer program made available on the internet for that purpose.
The information needed to complete the ballot registration will be some of the same information that would need to be provided to complete an application for a PEV, including the registered participant’s name, date of birth, passport details and the number of members of the family unit.
This information will be self-declared and used to manage eligibility for the visa pre application process. The provision of basic personal information for registration in the ballot, also required in a visa application, will also assist to manage the integrity of registrations to ensure that the person named in the registration who is chosen at random to apply for the PEV and the associated visa applicant are the same person.
The Department of Home Affairs will manage the ballot registration program and is responsible for the collection of the information. All information collected for the purposes of the registration for the visa pre-application process will be treated in accordance with the requirements of the Privacy Act 1988 and other applicable legislative requirements relating to the collection, use and disclosure of such information. The collection and use of this information is reasonable and necessary to ensure the eligibility of persons registering for the applicable PEV pre-application process and the integrity of that process. Therefore, any interference with the privacy of a person who chooses to register for a visa pre-application process would be lawful and not arbitrary.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
Attachment B
Details of the Migration (Subclass 192 (Pacific Engagement) Visa Pre-application Process) Determination (LIN 24/011) 2024
Part 1 - Preliminary
Section 1 – Name
This section provides that the name of the instrument is the Migration (Subclass 192 (Pacific Engagement) Visa Pre-application Process) Determination (LIN 24/011) 2024 (the instrument).
Section 2 – Commencement
This section provides for the commencement of the instrument.
Subsection 2(1) provides that each provision of the instrument specified in column 1 of the table commences, or would be taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Table item 1 provides that the whole instrument commences the day after the instrument is registered.
The note below the table covered by subsection 2(1) makes it clear that the table relates only to the provisions of the instrument as originally made. The table will not be amended to deal with any later amendments to the instrument.
Subsection 2(2) provides that any information in column 3 of the table is not part of the instrument. Information may be inserted in column 3, or information in it may be edited, in any published version of the instrument. There is currently no information in column 3 of the table.
Section 3 – Authority
This section provides that the authority under which this instrument is made is subsection 46C(14) of the Migration Act.
Section 4 – Definitions
This section sets out definitions of terms used in the instrument:
- Act means the Migration Act 1948.
- registered participant for a particular Subclass 192 (Pacific Engagement) visa pre-application process, has the meaning given by section 8;
- registration open period for a particular Subclass 192 (Pacific Engagement) visa pre-application process, means the period during which the process is open for registration;
- selected participant, for a particular Subclass 192 (Pacific Engagement) visa pre-application process, has the meaning given by section 13;
- selection open period, for a particular Subclass 192 (Pacific Engagement) visa pre-application process, means the period during which selection of participants for the process may take place (a note following this definition advises: “See also section 14 which is about requirements for selection open periods”); and
- Subclass 192 (Pacific Engagement) visa pre-application process means a process specified under section 6 (see below).
Part 2 – Rules for the conduct of visa pre-application process
Division 1 – Introduction
Section 5 – Purpose of this Part
This section provides that for the purposes of subsection 46C(14) of the Act, Part 2 sets out the rules that apply in relation to the conduct of a visa pre-application process that is specified in section 6 (see below).
Section 6 – Specified visa pre-application process to which rules apply
This section provides that for the purposes of subsection 46C(14) of the Migration Act, the instrument applies in relation to a visa pre-application process conducted under subsection 46C(1) of the Migration Act in relation to a Subclass 192 (Pacific Engagement) visa.
Division 2 – Country to which visa pre-application process relates
Section 7 – Visa pre-application process must be in relation to a country
Subsection 7(1) provides that a Subclass 192 (Pacific Engagement) visa pre-application process must be in relation to a single country.
A note after subsection 7(1) advises that multiple Subclass 192 (Pacific Engagement) visa pre-application processes can be conducted (see subsection 46C(10) of the Migration Act), including concurrent processes in relation to different countries.
Subsection 7(2) provides that the Minister must cause the country to which the Subclass 192 (Pacific Engagement) visa pre-application process relates to be published on the Department’s website.
The effect of section 7 is that the rules set out in the instrument will apply to a Subclass 192 (Pacific Engagement) visa pre-application process in relation to a particular Pacific island country or Timor-Leste when the country is published on the Department’s website. Inclusion of countries in the program will be on the basis of consultation and agreement between Australia and eligible countries. When an agreement is concluded with a country, the country will be listed on the Department’s website and a visa pre-application process will be established for the country in accordance with the rules set out in this instrument. Eligible nationals of the country will then have the opportunity to register for the ballot process relating to their country during the registration open period for that ballot.
Division 3 – Registration of participants
Section 8 – Registered participants
This section provides for when a person is a registered participant in relation to a particular pre-application visa process, and therefore eligible to be included in a ballot conducted for that process during the selection open period for the process. The requirements to be a registered participant are:
- the person has registered as a participant in the process using a computer program that is made available on the internet for that purpose. A registration for a particular Subclass 192 (Pacific Engagement) visa pre-application process must be made using the relevant online registration form through ImmiAccount, the interactive portal for online visa services available through the Department’s website;
- the registration includes a declaration by the person that they meet the eligibility requirements for the process specified under section 9 (see section 9, below, for details of the eligibility requirements). At registration stage, a person will be required only to declare that they meet each of the eligibility requirements rather than to provide evidence that they do. If a registered participant who is successful in being selected and makes an application for a Subclass 192 (Pacific Engagement) visa, as part of the requirements for making a valid application for the visa they will be required to provide evidence that the registration eligibility requirements are met (see subitem 1140(4) of Schedule 1 to the Migration Regulations). This will ensure that a person who makes a false declaration about meeting the eligibility requirements at the time they register will not be able to benefit by making a valid application for the visa if they are selected;
- the person must not already be registered as a participant in the particular process. The intention is that a person may register for a process only once and have only one chance of being selected from that pool during the selection open period for the process. If a new process is conducted the following year in relation to the same country, they may register again in that new process; and
- the registration occurs within the registration open period for the process. The registration open period during which a person may make a registration for the process will be published on the Department’s website (see section 10 below).
Note 1 at the end of section 8 advises that a part of a visa pre-application process may be conducted by the use of a computer program under the Minister’s control (see subsection 46C(11) of the Migration Act). This note makes clear the authority for the requirement in section 8 that a registration for a particular visa pre-application process must be made using a computer program made available on the internet for that purpose (see above).
Note 2 at the end of section 8 advises that any pre-application process charge that is payable in respect of the registration must be paid at the time of registration; see subsection 46C(22) of the Migration Act. Subsection 46C(22) provides that if a charge is payable under the Migration (Visa Pre-application Process) Charge Act 2023 in respect of the registration of a person, the charge must be paid at the time of registration and if it is not paid, the person is taken never to have been registered.
Section 9 – Eligibility requirements
Section 9 sets out the eligibility requirements for a registration of a person as a registered participant in a particular Subclass 192 (Pacific Engagement) visa pre-application process. The following requirements must be met in order for a person to be eligible to be registered in a Subclass 192 visa pre-application process:
- the person must hold a valid passport issued by the country to which the particular Subclass 192 visa pre-application process relates (see section 7 above);
- the person must not be a citizen of New Zealand. This requirement prevents people with dual citizenship with New Zealand from registering for a Subclass 192 visa process. As these people will already have a right of residence in New Zealand, and the numbers of Subclass 192 visas will be limited for each participating country, allowing them to register could deprive others, to whom residence in New Zealand is not available, of an opportunity to obtain a place to apply for a Subclass 192 visa permitting permanent residence in Australia. Further, from 1 July 2023 New Zealand citizens have a direct pathway to Australian citizenship;
- the person, or a parent of the person, must have been born in a country specified in Schedule 1 to the instrument. The countries specified in Schedule 1 are the Pacific island countries and Timor-Leste, Australia and New Zealand. An applicant for the visa does not need to have been born in the specific country to which the pre‑application visa process relates, but does need to have been born in, or have a parent who was born in, one of the relevant Pacific island countries or Timor-Leste included in the scope of the Pacific Engagement program, or in Australia or New Zealand. This recognises that a parent may have travelled to another country in the region (including Australia or New Zealand) to give birth at alternative medical facilities. This requirement ensures that an applicant for the grant of a Subclass 192 (Pacific Engagement) visa has enduring ties with the Pacific island countries or Timor-Leste. Applicants who acquire citizenship of a relevant Pacific island country or Timor-Leste without having been born, or having a parent born, in a relevant country will not be eligible to register for the ballot or to apply for a Subclass 192 visa. This will assist in achieving the purpose of the Subclass 192 visa in strengthening lasting and genuine on-going ties with the Pacific island countries and Timor-Leste; and
- the person must be aged at least 18 years and no more than 45 years at the beginning of the registration open period (for registration open period, see section 10, below). The intention is that a person must meet the age requirement to register for a process. If selected to apply for Subclass 192 (Pacific Engagement) visa, the person will meet the requirements to make a valid application for the visa on the basis of their age (between 18 and 45 years) as it was at the beginning of the registration open period rather than at the date the visa application is made. This will avoid any possible disadvantage due to the passage of time between registration and visa application.
Section 10 – Registration open period
This section provides that a Subclass 192 (Pacific Engagement) visa pre-application process must involve a finite registration open period for the process, and that the Minister must cause the registration open period, and any extension of the period, to be published on the Department’s website.
Registration open period for a particular process is defined in section 4, above, to mean the period during which the process is open for registration. This means that when a country to which a visa pre-application process applies is published on the Department’s website in accordance with section 7, above, the period during which an eligible person may register for that process will also be published on the Department’s website. This ensures transparency and accessibility of information about each particular process.
Section 11 – Withdrawal of registration
Section 30 provides that a registered participant in a Subclass 192 (Pacific engagement) visa pre-application process may withdraw their registration as a participant by using a computer program made available on the internet for that purpose. This provision allows individual registered participants who are no longer interested in obtaining a Subclass 192 (Pacific Engagement) visa to withdraw from the process, leaving the opportunity to be selected to other registered participants who retain their interest in the program.
A note following section 11 advises that a part of a visa pre-application process may be conducted by the use of a computer program under the Minister’s control (see subsection 46C(11) of the Migration Act). This note makes clear the authority for the provision in section 11 for withdrawal of a registration to be made by using a computer program made available on the internet for that purpose (see above).
Section 12 – Duration of registration
Section 12 provides for when a person’s registration as a registered participant in a particular Subclass 192 (Pacific Engagement) visa pre-application process lapses. A person will no longer be eligible to be selected in the process after their registration lapses (or ceases). The times at which registration will lapse are:
- the end of the selection open period for that process (see section 14, below, for details of the selection open period);
- if the person is selected as a selected participant for that process – when the person is selected;
- if the person withdraws their registration as a participant in that process when the withdrawal is lodged (see section 11, above, for details of withdrawal of registration); or
- if the person dies before the person is selected as a selected participant for that process – when the person dies.
The purpose of this section is to ensure the efficient management of each visa pre-application process conducted as well as equitable and fair access to each process. In particular, it ensures that the same person cannot be selected twice, and that a person who is no longer interested in being selected or cannot be selected does not continue to be a registered participant. It is intended that only registered participants who continue to be interested in selection under a specific visa pre-application process will remain as registered participants and will have the opportunity to be selected in the process. The end of the selection open period indicates the end of a particular process. A person’s registration lapses at that time and does not carry over into any future processes. If a new process is commenced for the following year, a person would need to register afresh for that process.
Division 4 – Selection of registered participants
Section 13 – Selected participants
This section provides that a person is a selected participant for a particular Subclass 192 (Pacific Engagement) visa pre-application process if the person has been randomly selected for that process by a computer program. The Department has developed the Registration Gateway Platform (REG) that integrates with existing departmental systems to manage a visa pre-application ballot process. The system requires internal authenticated user access to initiate a selection process, which includes nominating the number of participants to be randomly selected in the ballot. The selection activities are automatically managed by REG through an algorithm, removing all human intervention in the random selection of registered participants and the notification process. To maintain integrity in the process all user access is limited to viewing the number of registrations submitted and selected in each ballot process, and does not include access to personal details or identifiers of the registered participants in the process.
A person must be a selected participant under the rules set out in this instrument (determination) to meet the requirement of subitem 1104(4) table item 1 in Schedule 1 to the Migration Regulations to make a valid application for a Subclass 192 (Pacific Engagement) visa.
A note following section 13 advises that a part of a visa pre-application process may be conducted by the use of a computer program under the Minister’s control (see subsection 46C(11) of the Migration Act). This note makes clear the authority for the provision in section 13 for random selection of registered participants by a computer program (see above).
Section 14 – Selection open period
This section provides for the period during which a registered participant may be randomly selected for a particular Subclass 192 (Pacific Engagement) visa pre-application process. A process must involve a finite selection open period for the process, and the Minister must cause the selection open period for the process, and any extension of the period, to be published on the Department’s website.
The effect of this section is that the selection open period for all Subclass 192 (Pacific Engagement) visa selection processes will be finite (that is, the period will have a commencement date and an end date which may be extended). A registered participant in a particular process will be eligible to be selected at any time during the selection open period, but in accordance with paragraph 12(a) above, the person’s registration will lapse or cease at the end of the selection open period for the process.
Section 15 – Notice of selection
Section 15 provides for when a selected participant must be notified if they are successful in being selected in a Subclass 192 (Pacific Engagement) visa pre-application process and the information that must be included in that notice.
Subsection 15(1) provides that as soon as practicable after a person is selected in a particular process, the Minister must give the person notice in writing of their selection.
Subsection 15(2) provides that the notice must specify the date by which the person must make a valid visa application for a Subclass 192 (Pacific Engagement) visa. To be valid, the application for the visa must be made before the date specified in the notice (subitem 1140(4) table item 5 of Schedule 1 to the Migration Regulations). This ensures that a person who is successful in being selected for a process makes an application for a Subclass 192 within the timeframe of the program.
Subsection 15(3) provides that the date specified in the notice that a selected participant has to make a valid Subclass 192 visa application must be at least 30 days after the date of the notice. This requirement ensures that the time allowed for successful participants to apply for the visa cannot be less than 30 days and that participants will be aware that they will be allowed at least this minimum time. However, it is intended under policy that a longer period than the minimum will be specified for a Subclass 192 (Pacific Engagement) visa, and up to 120 days may be provided initially.
Schedule 1 – Eligibility requirements – person or parent born in specified country
Schedule 1 to the instrument specifies the countries in which a person, or a parent of the person, must be born to satisfy the eligibility requirement to register for a Subclass 192 (Pacific Engagement) visa pre-application process under paragraph 9(c) of this instrument. For further details of this requirement, please see the notes on paragraph 9(c), above.
The Pacific island countries specified are Fiji, Kiribati, Republic of Marshall Islands, Federated States of Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. Timor-Leste is also specified.
The list of specified countries also includes Australia and New Zealand, in recognition of the fact that people who meet the eligibility requirements for registration for a particular process may have been born in, or may have a parent who was born in, Australia or New Zealand because of the availability of alternative medical facilities in the region.
[1] Productivity Commission 2016, Migrant Intake into Australia, Inquiry Report No. 77, Canberra.