Migration (Subclass 462 (Work and Holiday) Visa Pre-application Process) Determination (LIN 24/060) 2024

EXPLANATORY STATEMENT

Issued by authority of the Minister for Immigration and Multicultural Affairs

Migration Act 1958

Migration (Subclass 462 (Work and Holiday) Visa Pre-application Process) Determination (LIN 24/060) 2024

1.        This instrument, departmental reference LIN 24/060, is made by the Minister for Immigration and Multicultural Affairs under subsection 46C(14) of the Migration Act 1958.
2.        The instrument commences on 16 September 2024, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).

Purpose

1.        The purpose of the instrument is to make a determination in relation to visa pre-application processes for the random selection of registered participants who are seeking to apply for a Subclass 462 (Work and Holiday) visa and who hold valid passports issued by specified countries.

Background

1.        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 arranged to be conducted under subsection 46C(1).
2.        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).
3.        Subsection 46C(2) of the Migration Act provides that a visa pre-application process must involve the registration of persons as registered participants who 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.
4.        Subsection 46C(11) of the Migration Act provides that a visa pre-application process, or part of a visa pre-application process, may be conducted by the use of a computer program under the Minister’s control.
5.        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.
6.        Subsection 46C(14) provides that the Minister may by legislative instrument determine rules that apply to a specified visa pre-application process. 
7.    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.
8.    Item 1224A (Work and Holiday (Temporary)(Class US)) of Schedule 1 to the Migration Regulations 1994 (the Migration Regulations) sets out the requirements to be met to make a valid application for a Subclass 462 (Work and Holiday) visa.  In particular, paragraph 1224A(3)(a) requires that all applicants seeking a Subclass 462 visa must hold a valid passport issued by a foreign country specified in an instrument made for the purposes of the paragraph.  The Work and Holiday program aims to provide visas for temporary stay in Australia of young adults who have achieved a specified level of education from countries that have agreed to participate in the program.  These countries are specified in the instrument under paragraph 1224A(3)(a).  The arrangements with each country include the maximum number of visas that may be granted each program year to eligible nationals of the country.
9.    The Migration Amendment (Subclass 462 (Work and Holiday) Visa) Regulations 2024 amended item 1224A to insert a new subitem 1224A(3A) with an additional requirement to be met by the passport holders of some of the countries specified in the instrument under paragraph 1224A(3)(a) as countries participating in the Work and Holiday program. The additional requirement applies if an applicant is not and has not previously been in Australia as the holder of a Subclass 462 visa and holds a passport issued by a foreign country specified in a (further) legislative instrument made for the purposes of paragraph 1224A(3A)(b), then the applicant must be a selected participant in a visa pre-application process (generally referred to as a ‘ballot’) conducted under subsection 46C(1) of the Migration Act. This is a criterion of a kind mentioned in subsection 46(4A) of the Migration Act.   
10.    The provision in new subitem 1224A(3A) effectively manages the volume of applications made by applicants holding passports issued by specified countries to those who have been randomly selected in a ballot to apply for the visa.  This provision is required because for some countries within the Work and Holiday program, the demand for visas significantly exceeds the numbers of visas agreed to with the particular country.  Providing for the relevant countries to be specified by the Minister in an instrument allows for a flexible and, if necessary, rapid response to fluctuations in demand for visas from particular countries or to facilitate new arrangements with other countries where it is expected that there will be a high demand for visas. The use of random selection ensures fairness as all applicants who register for the ballot have an equal chance of drawing a place which permits them to apply for and be granted a Subclass 462 visa subject to satisfying remaining requirements and criteria.  
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 Subclass 462 (Work and Holiday) visa in relation to each country specified for the purposes of paragraph 1224A(3A)(b).  Other aspects of the visa pre-application process will be managed administratively. There will be a separate visa pre-application process conducted under this determination for each specified country whose passport holders will be subject to the visa pre-application process. The first countries to be specified will be the People’s Republic of China, India and Vietnam, but other countries may be added later if appropriate.  All processes will be conducted in accordance with the rules set out in this determination.   

Consultation

1.    Consultation in relation to the Regulations was undertaken with the Department of Foreign Affairs and Trade and the Attorney-General’s Department.  This consultation accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act).
2.    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 OBPR22-03816. 

Statement of Compatibility with Human Rights

1.    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, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.  The Statement is included at Attachment A.

Details of the instrument

1.    Details of the instrument are set out in Attachment B.

Parliamentary scrutiny

1.    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 462 (Work and Holiday) Visa Pre‑application Process) Determination (LIN 24/060) 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 462 (Work and Holiday) Visa Pre-application Process) Determination (LIN 24/060) 2024 (WHV Determination) sets out the rules that apply in relation to the conduct of the Subclass 462 Work and Holiday visa (WHV) pre-application process under subsection 46C(1) of the Migration Act 1958 (Migration Act).

A visa pre‑application process (referred to generally as a ‘ballot’), may be conducted where it is a prescribed requirement in Schedule 1 to the Migration Regulations 1994 (the Migration Regulations) that in order to make a valid application for a particular visa, an applicant must have been randomly selected under a relevant visa pre-application process for the visa. The ballot involves the random selection of registered participants who will then be permitted to lodge an application for the relevant visa. Visas will be granted to registered participants who are successful in being selected in the ballot and go on to apply for the visa, subject to satisfaction of the remaining application requirements and criteria for the visa. 

The WHV program promotes cultural exchange and boosts people-to-people connections between young adults from Australia and partner countries. The WHV is a temporary visa that allows the holder to holiday in Australia for 12 months, and undertake short-term work and study. The WHV program is for eligible passport holders from countries that have agreed to participate in the program. Bilateral arrangements are negotiated between Australia and each participating country which set out eligibility requirements and, if applicable, the maximum number of visas that may be granted to eligible passport holders of that country in a program year. Demand for Subclass 462 visas from certain countries is expected to significantly exceed the numbers of visas agreed to under the bilateral arrangements with those countries.

Subsection 46C(14) of the Migration 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 WHV Determination is made under subsection 46C(14) of the Migration Act and is part of the legislative package that implements the visa pre-application process for the WHV for specified foreign countries to provide fair and equitable access to the WHV program where the demand from a partnering country is expected to significantly exceed the agreed number of visa places for that country in any given program year.

The Migration Amendment (Subclass 462 (Work and Holiday) Visa) Regulations 2024 (Amendment Regulations) amended Schedule 1 to the Migration Regulations to introduce a requirement that to make a valid application for a Subclass 462 WHV, applicants who hold a passport issued by a specified foreign country must have been randomly selected in a visa pre-application process arranged by the Minister in respect of the relevant country. Foreign countries to which a WHV pre-application process relates are specified in a legislative instrument made for this purpose under the Migration Regulations, as amended by the Amendment Regulations. Countries in respect of which a ballot for Subclass 462 WHV applications will be introduced initially include the Peoples’ Republic of China, India and Vietnam.

The WHV Determination sets out the rules that must be met in order for a person to register as a registered participant in a WHV pre-application process. To register as a registered participant in a WHV pre-application process, the applicant must:

• register using a computer program made available on the internet;
• 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 WHV pre-application process covered in the WHV Determination reflect some of the key objective requirements to be granted a WHV and require the applicant to satisfy the following criteria at the time of registration in that process:

• hold a valid passport issued by the foreign country indicating that the applicant is a national of the country to which that process relates;
• at the date of registration, the person is aged at least 18 years and no more than 30 years.

Under the WHV Determination, a WHV pre-application process must be in relation to a single foreign country, and the Minister must cause the country to which a WHV pre-application process relates to be published on the Department’s website. Multiple WHV pre-application processes can be conducted, including concurrent processes in relation to different countries.

The WHV Determination also includes provisions dealing with the registration open period (during which eligible persons may register), the selection open period (during which draws may be made from the pool of registrants), the notice of selection, the expiry of registrations and withdrawal of registrations. These processes are described below.

The WHV 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 WHV 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 WHV pre-application process will be placed in a randomised draw, from the relevant country pool of 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 WHV pre-application process will be published on the Department’s website, along with any extensions of the selection open period.

Participants selected through the WHV pre-application 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 WHV. The notice will specify the date by which they must make their application for a WHV. Failure to lodge a valid WHV application in the period specified in the notification will result in the expiry of the offer. Unsuccessful registered participants will not be formally notified when their registration expires, but will be able to monitor the status of their registration through a computer program made available on the internet for that purpose.

All registrations entered for the WHV 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);
• when the persons turn 31 years of age (if the person turns 31 before the person is selected as a selected participant for that process); or
• when the person dies (if the person dies before the person is selected as a selected participant for that process).

A registered participant in an applicable WHV 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.

Under subsection 46C(22) of the Migration Act, the applicant will also need to pay the charge for registration in the WHV pre-application process at the time of registration, otherwise the applicant is taken never to have been registered. (The amount of charge is prescribed in the Migration (Visa Pre-application Process) Charge Amendment (Work and Holiday Visa) Regulations 2024.)

Human rights implications

This Determination may engage 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 process 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 visa pre-application process to enable the random selection of applicants from specified foreign countries for the WHV program is appropriate because demand from these countries is expected to significantly exceed the agreed number of visa places for that country program in a given year. The Statement of Compatibility of Human Rights that accompanies the Amendment Regulations provides further information as to why the use of a visa pre-application process for persons from specified foreign countries is necessary, reasonable and proportionate to provide eligible registrants an equal chance of being selected and apply for the WHV.

The WHV Determination states that a person must register as a participant in the applicable WHV pre-application process using a computer program made available on the internet. This may raise the above rights to non-discrimination in relation to accessibility by 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 pre-application process, including because of a disability.

The WHV 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 WHV 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 registration per person which is a requirement that is specified in the WHV Determination, and also is the most fair and equitable way to select participants to apply for the WHV.

The WHV Determination also specifies eligibility requirements for registration as a registered participant in the WHV pre-application process. These eligibility requirements may engage the above rights to non-discrimination, including in relation to the ability of a passport holder of a specified foreign country to obtain a WHV that would allow them to enter and remain in Australia, as well as to undertake periods of study or work, as eligibility to apply for a WHV for nationals of specified foreign countries are limited to those who are selected in the pre-application process after meeting the eligibility requirements for registration in that process.

The eligibility requirements for a participant to register in the visa pre-application process under the WHV Determination align with the existing visa criteria prescribed in the Migration Regulations for the WHV. This is to mitigate circumstances of participants who draw a place in the pre-application process not meeting the visa requirements of the WHV.

The eligibility requirements for registration include that the person must hold a valid passport issued by the foreign country indicating that the applicant is a national of the country to which the visa pre-application process relates and aged at least 18 years and no more than 30 years at the date of registration. To the extent that the visa pre-application process eligibility requirements for the WHV differentiate on the basis of country of citizenship, and apply only to the passport holders of the specified countries, this is reasonable and proportionate to the aim of providing eligible registrants an equal and fair chance of being selected and applying for a visa that is over subscribed for their specific country program. The amendments do not affect WHV arrangements for existing visa holders, or for prospective applicants who hold passports issued by other foreign countries participating in the WHV program.

The requirement to be at least 18 and no more than 30 years of age at the date of registration in the WHV pre-application process, as well as the provision for the registration to lapse if the person turns 31 before the person is selected as a participant, aligns with existing visa criteria for the WHV. The purpose of the WHV is to allow young adults to travel in Australia for extended periods and to undertake short term work arrangements to support themselves and the WHV requirements reflect the arrangements negotiated with participating countries. A person who has turned 31 years of age would no longer be able to satisfy the criteria for the grant of a WHV, and random selection under the process would no longer be of any benefit to the person in obtaining a WHV.

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 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 visa pre-application process. Any person who is not eligible to register for the visa pre-application process 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 ineligible for, or unsuccessful in, a WHV pre-application process may register for future processes 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 WHV for nationals of those partnering countries that are expected to demonstrate high demand for the agreed number of visa places, 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 legitimate aims, and 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 WHV Determination sets out the requirements for the conduct of the WHV 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 WHV pre-application registration will be some of the same information that would need to be provided to complete an application for a WHV, including the registered participant’s name, date of birth and passport details.

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 pre-application process, 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 WHV and the associated visa applicant are the same person.

The Department of Home Affairs will manage the registration platform 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 WHV 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, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to legitimate aims.

The Hon Tony Burke MP

Minister for Immigration and Multicultural Affairs

Attachment B

Details of the Migration (Subclass 462 (Work and Holiday) Visa Pre-application Process) Determination (LIN 24/060) 2024

Part 1 - Prelimimary

Section 1 – Name

This section provides that the name of the instrument is the Migration (Subclass 462 (Work and Holiday) Visa Pre-application Process) Determination (LIN 24/060) 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 on 16 September 2024.

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. Column 3 of the table confirms only that the date of commencement of the instrument is 16 September 2024.

Section 3 – Authority

This section provides that the authority under which this instrument is made is subsection 46C(14) of the Migration Act 1958 (the Migration Act).

Section 4 – Definitions

This section sets out definitions of terms used in the instrument:

• Act means the Migration Act 1958;
• registered participant for a particular Subclass 462 (Work and Holiday) visa pre-application process, has the meaning given by section 8 of the instrument (see section 8 below for further details about the meaning of registered participant);
• registration open period  for a particular Subclass 462 (Work and Holiday) visa pre-application process, means the period during which the process is open for registration.  A note following this definition advises the reader to see also section 10 of the instrument which is about requirements for registration open periods;
• selected participant, for a particular Subclass 462 (Work and Holiday) visa pre-application process, has the meaning given by section 13 of the instrument (see section 13 below for further details of the meaning of selected participant);
• selection open period, for a particular Subclass 462 (Work and Holiday) visa pre-application process, means the period during which selection of participants for the process may take place. A note following this definition advises the reader to see also section 14 of the instrument which is about requirements for selection open periods; and
• Subclass 462 (Work and Holiday) visa pre-application process means a process specified under section 6 of the instrument (see section 6 below for further details relating to a Subclass 462 (Work and Holiday) visa pre-application process).

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 determination applies in relation to a visa pre-application process conducted under subsection 46C(1) of the Migration Act in relation to a Subclass 462 (Work and Holiday) visa. 

Division 2 – Foreign country to which visa pre-application process relates

Section 7 – Visa pre-application process must be in relation to a foreign country

Subsection 7(1) provides that a Subclass 462 (Work and Holiday) visa pre-application process must be in relation to a single foreign country.

A note after subsection 7(1) advises that multiple Subclass 462 (Work and Holiday) visa pre-application processes can be conducted (see subsection 46C(10) of the Migration Act), including concurrent processes in relation to different countries.  The effect of subsection 45C(10) is that the determination may apply concurrently to one or more visa pre-application processes relating to a Subclass 462 (Work and Holiday) visa and a particular country or countries.

Subsection 7(2) provides that the Minister must cause the country to which a Subclass 462 (Work and Holiday) visa pre-application process relates to be published on the Department’s website.  The effect of this provision is that at any given time, the determination will relate to a Subclass 462 (Work and Holiday) visa and any country or countries that the Minister has caused to be published on the Department’s website.  These countries will also be specified in a legislative instrument made for the purposes of paragraph 1224A(3A)(b) of Schedule 1 to the Migration Regulations to ensure that subitem 1224A(3A) of that Schedule applies to applicants holding valid passports from those countries.  

Division 3 – Registration of participants

The purpose of Division 3 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 registered and 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 and are able to meet other requirements to apply for and be granted a Subclass 462 visa 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. Further details of the sections in Division 3 are as follows:

Section 8 – Registered participants

This section provides for when a person is a registered participant in relation to a particular visa pre-application 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;
• 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. If a new process is conducted the following year in relation to the holders of passports issued by the same country, unsuccessful participants in a previous process may register again in that new process if they continue to meet the eligibility requirements; 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).

A note following section 8 advises that any pre-application process charge that is payable under the Migration (Visa Pre-application Process) Charge Act 2023 and the Migration (Visa Pre-application Process) Charge Regulations 2024 in respect of the registration must be paid at the time of registration; see subsection 46C(22) of the Migration Act.

Section 9 – Eligibility requirements

Section 9 sets out the eligibility requirements for the registration of a person as a registered participant in a particular Subclass 462 (Work and Holiday) visa pre-application process. The following requirements must be met:

• the person must hold a valid passport issued by a foreign country to which a particular Subclass 462 (Work and Holiday) visa pre-application process relates (see section 7, above); and
• the person must be aged at least 18 years and no more than 30 years as at the date of registration.  (Once a person turns 31 years, they will no longer be eligible for registration in a Subclass 462 (Work and Holiday) visa pre-application process, see section 12 below).

Section 10 – Registration open period

This section provides that a Subclass 462 (Work and Holiday) 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.

The 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.  Eligible persons who register for the process during this period may then be selected at random in a ballot during the selection open period for the process (see section 14, below). 

Section 11 – Withdrawal of registration

This section provides that a registered participant in a Subclass 462 (Work and Holiday) 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 462 (Work and Holiday) visa to withdraw from the process, leaving the opportunity to be selected to other registered participants who retain their interest in the program. 

Section 12 – Duration of registration

Section 12 provides for when a person’s registration as a registered participant in a particular Subclass 462 (Work and Holiday) 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);
• if the person turns 31 before the person is selected as a selected participant for that process – when the person turns 31 (a person who is aged over 30 would no longer be able to satisfy the criteria for the grant of a Subclass 462 (Work and Holiday) visa under clause 462.212 of Schedule 2 to the Migration Regulations, and random selection under the process would no longer be of any benefit to the person in obtaining a Subclass 462 visa); and
• if the person dies before the person is selected as a selected participant for that process – when the person dies.

Division 4 – Selection of registered participants

Selected 13 – Selected participants

This section provides that a person is a selected participant for a particular Subclass 462 (Work and Holiday) 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 process.  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 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 item 1 in the table in subitem 1224A(3A) Schedule 1 to the Migration Regulations to make a valid application for a Subclass 462 (Work and Holiday) visa if subitem 1224A(3A) applies to the person.

Note 1 following section 13 advises that a person must be a registered participant for a particular Subclass 462 (Work and Holiday) visa pre-application process to be a selected participant for the process: see subsection 46C(2) of the Migration Act which requires a visa pre-application process to involve registered participants being selected at random.  See also section 8 of this instrument, above, for details concerning registered participants.

Note 2 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 462 (Work and Holiday) visa pre-application process.  The 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 462 (Work and Holiday) 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, as well as if any of the other circumstances set out in section 12 occur before the end of the open selection period.  A person whose registration in a visa pre-application process lapses at or before the end of the selection open period in accordance with section 12, above, will no longer be eligible for random selection in that process.

Section 15 – Notice of selection

Section 15 provides for when a selected participant must be notified if they are successful in being selected for a Subclass 462 (Work and Holiday) 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 for 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 462 (Work and Holiday) visa.  To be valid, the application for the visa must be made before the date specified in the notice (item 3 of the table in subitem 1224A(3A) 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 462 (Work and Holiday) visa within the timeframe of the program.