HOME AFFAIRS LEGISLATION AMENDMENT (2019 MEASURES NO. 1) REGULATIONS 2019 (F2019L01423) EXPLANATORY STATEMENT

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HOME AFFAIRS LEGISLATION AMENDMENT (2019 MEASURES NO. 1) REGULATIONS 2019 (F2019L01423)

EXPLANATORY STATEMENT

Issued by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Australian Citizenship Act 2007

Migration Act 1958

Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

The Australian Citizenship Act 2007 (the Citizenship Act) provides for the process of becoming an Australian citizen, the circumstances in which citizenship may cease, and some other matters related to citizenship.

Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

Section 54 of the Citizenship Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019 (the Regulations) is to amend the Migration Regulations 1994 (the Migration Regulations) and the Australian Citizenship Regulation 2016 (the Citizenship Regulation).

Schedule 1 makes routine amendments to the Citizenship Regulation to incorporate instruments made under the Migration Regulations updating the places and currencies in which citizenship application fees may be paid and the relevant exchange rates.

Schedule 2 amends the Migration Regulations to increase certain visa application charges (VACs) for the Temporary Protection and Safe Haven Enterprise visas in line with the 2019-20 forecast consumer price index (CPI) and the one-off Visa Application Charge - uplift measure in the 2019-20 Budget. The relevant VACs are increased by $5, from $35 to $40.

Schedule 3 amends the Migration Regulations to make minor amendments to correct and clarify the effect of the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the New Skilled Regional Visas Regulations) to:

* expand the group benefitting from transitional arrangements related to the closure of Subclass 187 (Regional Sponsored Migration Scheme) visa;

* add the Skilled Employer Sponsored Regional (Provisional) visa to the visas for which, unless there are compelling and compassionate circumstances, the Minister must be satisfied that an applicant claiming to be in a de facto relationship has been in that relationship for at least twelve months immediately before the date of the application;

* clarify the transitional provisions at Schedule 2 to the New Skilled Regional Visas Regulations; and

* ensure that eligible family members can join a Subclass 191 (Permanent Residence (Skilled Regional)) visa application after it is made and before it is decided.

Schedule 4 amends the Migration Regulations to make minor technical amendments to update the definition of 'Employment Minister' and a reference to the Acts Interpretation (Registered Relationships) Regulations 2008, which have been repealed and replaced.

A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment B.

The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments. No Regulation Impact Statement is required. The OBPR consultation references are:

* Schedule 1 - 25232;

* Schedule 2 - 25219;

* Schedule 3 - 25045 (the OBPR was consulted when the Migration Amendment (New Skilled Regional Visas) Regulations 2019 were introduced and advised that there was no regulatory impact); and

* Schedule 4 - 25253 and 25671.

In relation to Schedule 1, no further consultation was undertaken as the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act).

In relation to Schedule 2, no further consultation was undertaken. The annual indexation of VACs does not substantially alter existing arrangement and consultation beyond OBPR was therefore not undertaken in relation to this measure, in line with past practice. The amendments to implement the additional 5.4 per cent increase reflect decisions taken by Government and announced in the 2019-20 Budget, which was handed down on 2 April 2019. These amendments do not alter the current pricing structure for VACs and the process for making a visa application has not been altered by this measure. Given this, and the quantum of the one-off percentage increase to VACs (5.4 per cent), it is considered that these amendments, like the annual indexation measure, do not substantially alter existing arrangements. For this reason, consultation was not undertaken beyond OBPR and any Government agencies consulted as part of the Budget process. This accords with subsection 17(1) of the Legislation Act which envisages consultations where appropriate and reasonably practicable.

In relation to Schedule 3, before the New Skilled Regional Visas Regulations were made, extensive consultations were conducted with relevant Commonwealth agencies, including: the Department of the Prime Minister and Cabinet; the Attorney-General's Department; the Department of the Treasury; the Department of Finance; the Department of Social Services; the Department of Education and Training; the Department of Jobs and Small Business; the Department of Industry, Innovation and Science; the Department of Infrastructure, Regional Development and Cities, and the Department of Human Services.

In relation to Schedule 4, the Department of Employment, Skills, Small and Family Business was consulted about the definition of Employment Minister. In relation to the reference to the Acts Interpretation (Registered Relationships) Regulations 2008, no further consultation was undertaken as the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act.

The Regulations commence as follows:

* Schedule 1 - 1 January 2020, at the same time as the incorporated instruments;

* Schedule 2 - 16 November 2019, to align with changes to Departmental systems;

* Part 1 of Schedule 3 - 16 November 2019, immediately after Schedule 2 to the New Skilled Regional Visas Regulations;

* Part 2 of Schedule 3 - 16 November 2022, immediately after Schedule 3 to the New Skilled Regional Visas Regulations; and

* Schedule 4 - the day after registration.

The Department of Home Affairs follows standard practices to notify clients about the Regulations, including updating the Department's website and notifying peak bodies.

The amendments made in Schedules 1 and 2, relating to fees and charges, only apply to new applications made on or after the commencement of the provisions.

Further details of the Regulations are set out in Attachment C.

The Migration Act and Citizenship Act specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislation Act.

ATTACHMENT A

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) relevantly provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

In addition, the following provisions of the Migration Act may apply:

* subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

* section 45A, which provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;

* subsection 45B(1), which provides that the amount of the visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application. The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997 (VAC Act);

* section 45C, which deals with regulations about the visa application charge, particularly:

o subsection 45C(1), which provides that the Migration Regulations 1994 (the Regulations) may provide that the visa application charge may be payable in instalments, and specify how those instalments are to be calculated and when instalments are payable; and

o paragraph 45C(2)(a), which relevantly provides that the Regulations may make provision for and in relation to various matters, including the recovery of the visa application charge in relation to visa applications and the way, including the currency, in which visa application charge is to be paid;

* paragraph 46(1)(b), which provides that the regulations may prescribe the criteria and requirements to be satisfied for a visa application to be valid; and

* subsection 140ZN(1), which provides that the regulations may make provision for, or in relation to, among other things, the remission or refund of nomination training contribution charge.

The following provisions of the VAC Act may also apply:

* section 4, which imposes a visa application charge payable under section 45A of the Migration Act; and

* section 5, which limits the visa application charge for most visas and provides the formula to calculate the charge limit for those visas for later financial years.

The following provisions of the Citizenship Act may also apply:

* subsection 21(1), which provides that a person may make an application to the Minister to become an Australian citizen; and

* paragraph 46(1)(d), which provides that an application under a provision of the Act must be accompanied by the fee (if any) prescribed by the regulations.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019

This 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.

Schedule 1 - Payment of Citizenship fees

Overview

Schedule 1 of the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019 (the Amendment Regulations) amends the Australian Citizenship Regulation 2016 (the Citizenship Regulation) to allow citizenship application fees, and refunds of citizenship application fees where appropriate, to be paid in foreign countries and foreign currencies.

In particular, item 1 of Schedule 1 to the Amendment Regulations amends subsection 16(7) of the Citizenship Regulation to incorporate, by reference, instruments made under the Migration Regulations 1994 (the Migration Regulations) that relate to the payment of fees in foreign countries and foreign currencies. Overseas Australian posts routinely collect Australian citizenship application fees. These amendments facilitate the lawful collection of citizenship application fees in specified foreign countries and foreign currencies at updated exchange rates.

Subsections 16(2) and (3) of the Citizenship Regulation provide that the application must be made in a place, and in the currency, specified in the "places and currencies instrument". Subsection 16(4) of the Citizenship Regulation provides that, if the currency in which the payment is to be made is specified in the "conversion instrument", the amount of the payment is to be worked out using the exchange rate for the currency specified in the instrument. These instruments are defined in subsection 16(7) of the Citizenship Regulation and are re-made under the Migration Regulations every six months to reflect currency fluctuations and changes to acceptable currencies. Consequently, subsection 16(7) of the Citizenship Regulation requires biannual amendment to reflect the current version of these instruments.

Purpose of amendments

The acceptable foreign countries and currencies are set out in legislative instruments made under subregulations 5.36(1) and (1A) of the Migration Regulations. The Australian Citizenship Act 2007 does not allow for the making of a legislative instrument under the Citizenship Regulation to specify matters in relation to the collection of application fees in foreign countries and foreign currencies. Instead, subsection 16(7) of the Citizenship Regulation incorporates by reference instruments made under the Migration Regulations to specify the foreign countries where a fee may be paid, the currency that can be accepted in each listed country and the currency exchange rate that must be applied.

As a result, the relevant instruments, Places and Currencies for Paying of Fees and Payment of Visa Application Charges and Fees in Foreign Currencies, are updated on 1 January and
1 July each year, and amendments to the Citizenship Regulation are made to incorporate those instruments from that date. The only amendments Schedule 1 makes to the Citizenship Regulation are the updating of the instrument numbers in subsection 16(7).

As such, the amendments made by Schedule 1 are technical in nature, and do not substantially alter existing arrangements.

Human rights implications

Schedule 1 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 1 is compatible with human rights as it does not raise any human rights issues.

Schedule 2 - Visa application charges

Overview

Schedule 2 to the Amendment Regulations amends the Migration Regulations to increase certain first instalment visa application charges (VACs) for the Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visas. The amendment increases the VACs in accordance with the 2019-20 forecast consumer price index (CPI). In addition, the charges are increased by a further 5.4 per cent in line with the one-off Visa Application Charge - uplift measure announced as part of the 2019-20 Budget. This means that the relevant VACs are increased by the cumulative total of the 2018-19 CPI increase and the additional uplift measure. In effect, each VAC is increased by five dollars, from $35 to $40.

These changes are consistent with the Migration Amendment (Visa Application Charges) Regulations 2019, which amended the Migration Regulations to increase first instalment VACs for a number of visas by the cumulative total of the 2018-19 CPI increase and the additional uplift measure from 1 July 2019.

The two VACs amended by the Regulations were included in Government's decisions to increase first instalment VACs, but were not indexed by the Migration Amendment (Visa Application Charges) Regulations 2019. The Regulations therefore apply the increases to the Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visas from 16 November 2019. This ensures that the VAC for applying for these visas is consistent with the VAC for applying for a Protection (Class XA) visa, which was indexed from $35 to $40 on 1 July 2019.

There is a Nil VAC for applicants for the Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visa if the applicant is in immigration detention and has not been immigration cleared when they make the application. This is not being increased and remains Nil.

The amendments in Schedule 2 to the Regulations will come into effect on 16 November 2019. The adjusted VACs are within limits calculated under the Migration (Visa Application) Charge Act 1997.

Human rights implications

Schedule 2 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 2 is compatible with human rights as it does not raise any human rights issues.

Schedule 3 - Amendments relating to the Migration Amendment (New Skilled Regional Visas) Regulations 2019

Overview

Schedule 3 to the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019 (the Regulations) amends the Migration Regulations 1994 (the Migration Regulations) to:

* make minor amendments to correct and clarify the effect of Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the New Skilled Regional Visas Regulations), due to commence on 16 November 2019, to:

o expand the group benefitting from transitional arrangements related to the closure of Subclass 187 (Regional Sponsored Migration Scheme) visa;

o add the Skilled Employer Sponsored Regional (Provisional) (Class PE) visa to the visas for which, if an applicant claims to be in a de facto relationship, the Minister must be satisfied they have been in that relationship for at least the period of twelve months ending immediately before the date of the application, unless there are compelling and compassionate reasons for the grant of the visa or the relationship is a registered relationship; and

o clarify the transitional provisions at Schedule 2 to the New Skilled Regional Visas Regulations; and

* ensure that eligible family members can be added to a Subclass 191 (Permanent Residence (Skilled Regional)) visa application made by a primary applicant after it is made and before it is decided.

Human rights implications

The amendments in this Schedule have been assessed against the seven core treaties to which Australia is a party.

Definition of transitional 457 worker

This amendment may engage the right to work.

Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

The New Skilled Regional Visas Regulations insert a definition of transitional 457 worker in regulation 1.03 of the Migration Regulations on 16 November 2019 to ensure that persons coming within the definition of transitional 457 worker who are in the course of satisfying the residence requirement for a permanent Subclass 187 visa in the Temporary Residence Transition stream are not disadvantaged by the closing of the visa to further applicants on 16 November 2019 but may continue to apply after that date.

The amendment inserted by the New Skilled Regional Visas Regulations provided that a transitional 457 worker means a person who on 18 April 2017 held a Subclass 457 (Temporary Work (Skilled)) visa or was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted.

The amendment in this Schedule changes the definition of transitional 457 worker in regulation 1.03 of the Migration Regulations so that it means a person who held a Subclass 457 (Temporary Work (Skilled)) visa at any time on or after 18 April 2017. This is because it has come to notice that the persons who are intended to benefit from this transitional arrangement could have applied for a Subclass 457 at any time up until 18 March 2018. The amendment made by this item rectifies this oversight and ensures that applications for Subclass 187 visas in the Temporary Residence Transition stream will remain open for the intended group of Subclass 457 visa holders.

This amendment therefore promotes the right to work of persons who can apply for a Subclass 187 visa as a result of the expanded scope of the definition of transitional 457 worker, to the extent it supports a continued ability to work in Australia.

Criteria applicable to de facto partners

This amendment may engage the right to respect for the family and the right to freedom from interference with the family.

Articles 17(1) and (2) of the ICCPR provide that:

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.

Articles 23(1) and (2) of the ICCPR provide that:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

The scope of these rights require countries to adopt legislative, administrative and other measures to protect families, and to refrain from arbitrary interference in families. However, none of these obligations guarantee a right of entry or reunification in Australia for non-citizens.

The amendment prescribes the Skilled Employer Sponsored Regional (Provisional) (Class PE) visa for the purposes of regulation 2.03A ('criteria applicable to de facto partners'), with effect from 16 November 2019. Subregulation 2.03A(3) applies to a number of visas listed in that provision. For those visas, if a person claims to be in a de facto relationship for the purposes of a visa application, the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of twelve months ending immediately before the date of the application, unless there are compelling and compassionate circumstances for the grant of the visa.

In the context of this amendment, this is relevant to the situation where one person is an applicant for, or a holder of, a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa on the basis of their skills, and another person applies for this visa on the basis of being the first person's de facto partner. That person may be outside Australia or already in Australia. A person granted a visa on this basis will have the same entitlements as the first person, including the ability to work and/or study in Australia.

Subregulation 2.03A(3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.

Section 2E provides that:

a person is in a registered relationship with another person if the relationship between the persons is registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

In addition, it is open to the decision maker to grant a visa, despite not being satisfied that the applicant has been in the de facto relationship for at least the period of twelve months ending immediately before the date of the application, on the basis of compelling and compassionate circumstances.

The amendments create a limitation on when an applicant who claims to be a de facto partner for the purposes of a visa application can be granted a Skilled Employer Sponsored Regional (Provisional) (Class PE), which may in some circumstances limit the person's ability to remain in Australia with their partner. The limitation is considered necessary to support the integrity of Australia's migration program by helping ensure that visas which can be granted to persons on the basis of a relationship are granted to those in genuine and ongoing relationships, especially in light of the benefits offered in Australia to holders of such visas. In addition, the limitation is not imposed for registered de facto relationships and may be waived in compelling and compassionate circumstances, which allows individual circumstances to be taken into account. The limitations are therefore reasonable, necessary and proportionate.

For these reasons, this amendment is compatible with human rights.

Amendment to transitional provisions in relation to Subclass 187 (Regional Sponsored Migration Scheme) visa

This amendment makes a minor change to clause 8101 of the Migration Regulations, titled Transitional provisions in relation to Subclass 187 (Regional Sponsored Migration Scheme) visa, which was inserted by the New Skilled Regional Visas Regulations and provides for the finalisation of nominations that relate to the Subclass 187 visa, to take account of the arrangements for the closure of that visa on 16 November 2019.

Subclauses 8101(1) and (2) provide that nominations relating to a Subclass 187 visa, other than a nomination for the purpose of the Temporary Residence Transition stream which relates to a transitional 457 worker or a transitional 482 worker, are taken to be withdrawn if the person identified in the nomination does not apply for a Subclass 187 visa by 16 November 2019. The purpose of this provision is to deal efficiently with nominations that become redundant on 16 November 2019 because the person identified in the nomination is no longer able to apply for a Subclass 187 visa on the basis of the nomination.

The amendment in item 3 clarifies that clause 8101 does apply (meaning the nomination is taken to be withdrawn) where the person identified in the nomination is not a transitional 457 worker or a transitional 482 worker on 16 November 2019, but later becomes one. This amendment is technical in nature and does not have human rights implications.

Combined visa subclass 191 applications by family members

Article 2(1) of the Convention on the Rights of the Child (CRC) provides:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Article 3(1) of the Convention on the Rights of the Child (CRC) provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 10(1) of the CRC provides:

In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

Article 16(1) of the CRC provides:

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Articles 17(1) and (2) of the ICCPR provide that:

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.

Articles 23(1) and (2) of the ICCPR provide that:

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

The scope of the right to respect for the family and the right to freedom from interference with the family requires countries to adopt legislative, administrative and other measures to protect families, and to refrain from arbitrary interference in families. The obligations under the CRC include the obligation to treat the best interests of the child as a primary consideration and to treat applications for reunification of children with their parents in a positive, humane and expeditious manner. However, none of these obligations guarantee a right of entry or reunification in Australia for non-citizens.

The visa subclasses inserted by the New Skilled Regional Visas Regulations have a range of provisions to allow families to remain together, in a similar way to the visas they are replacing, when migrating to Australia and to cater to the particular situation of children at the permanent residence stage.

The new Subclass 191 visa enables members of the family unit to make a visa application at the same time as the primary applicant. It was also intended that a spouse, de facto partner or dependent child be able to lodge a valid 'secondary' visa application after the primary applicant makes his or her application, provided the primary applicant's visa application has not been decided. To give effect to this intention, the amendment in this Schedule removes the requirement in Schedule 1 of the Migration Regulations for the Subclass 191 visa, which is to commence on 16 November 2022, that a secondary application must be combined with a primary application (that is, made at the same time and place as a primary application) and replaces it with a provision that a secondary application may be combined with a primary application.

This amendment permits an application by a spouse, de facto partner or dependent child to be added under regulation 2.08A in the Migration Regulations at any time after the primary application is made and up until the application is decided. Regulation 2.08A operates so that an added secondary application is taken to have been combined with the primary application, which allows these applicants to satisfy the visa grant criterion requiring that a secondary application must have been combined with the primary application. This enables spouses and de facto partners and children to remain with their family members in Australia on a permanent basis (provided that visa grant criteria are satisfied), even if they apply after the primary applicant, as was originally intended.

Hence, this amendment promotes the rights relating to families and children in the ICCPR and the CRC.

Conclusion

Schedule 3 is compatible with human rights because to the extent that some of the amendments may limit human rights, those limitations are reasonable, necessary and proportionate.

Schedule 4 - Other amendments

Overview

Schedule 4 to the Amendment Regulations makes minor amendments to the Migration Regulations to update the definition of Employment Minister so that it reflects changes made by the Acts Interpretation Amendment Substituted Reference Order 2019 and to update a reference to the Acts Interpretation (Registered Relationships) Regulations 2008, which has been repealed and replaced.

Human rights implications

Definition of Employment Minister

The amendment to the definition of Employment Minister follows on from changes to ministerial responsibilities when the most recent government was formed and is technical in nature. This amendment does not have human rights implications.

Amended reference to the Acts Interpretation (Registered Relationships) Regulations 2008

This amendment repeals a reference to the 2008 Registered Relationships Regulations in subregulation 2.03A(5), and instead refers to a 'registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901'. This approach will ensure the reference remains current in the event that the 2019 Registered Relationships Regulations are repealed and replaced in future.

These amendments are technical in nature and do not have human rights implications.

Conclusion

Schedule 4 is compatible with human rights as it does not raise any human rights issues.

The Hon David Coleman MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

ATTACHMENT C

Details of the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019

Section 1 - Name

This section provides that the name of the instrument is the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019.

Section 2 - Commencement

This section provides when the provisions of the instrument commence.

Sections 1 to 4, and anything not covered by the table, commence the day after the instrument is registered.

Schedule 1 commences on 1 January 2020, to coincide with the updating of the relevant instruments incorporated by reference.

Schedule 2 commences on 16 November 2019, to align with the roll-out of changes to the relevant Departmental systems.

Schedule 3 commences as follows:

o Part 1 commences on 16 November 2019, immediately after Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019, to give effect to the intended policy from commencement of that Schedule;

o Part 2 commences on 16 November 2022, immediately after Schedule 3 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019, to give effect to the intended policy from commencement of that Schedule.

Schedule 4 commences the day after registration.

Section 3 - Authority

This section provides that the instrument is made under the Australian Citizenship Act 2007 (the Citizenship Act) and the Migration Act 1958 (the Migration Act).

Section 4 - Schedules

The purpose of this section is to provide for how the amendments in these Regulations operate.

Schedule 1 - Payment of citizenship fees

Australian Citizenship Regulation 2016

Item 1 - Subsection 16(7)

Item 1 repeals and substitutes subsection 16(7) of the Australian Citizenship Regulation 2016 (the Citizenship Regulation), which defines the terms 'conversion instrument' and 'places and currencies instrument'.

Definition of 'conversion instrument'

This item substitutes the definition of 'conversion instrument' in subsection 16(7) of the Citizenship Regulation with 'conversion instrument means the Migration (LIN 20/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 as in force on 1 January 2020'.

The definition of 'conversion instrument' is being amended to incorporate by reference a new instrument titled Migration (LIN 20/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020. This instrument, made under paragraph 5.36(1A)(a) of the Migration Regulations 1994 (the Migration Regulations), commences on 1 January 2020 and replaces the Migration (LIN 19/041: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2019.

The conversion instrument sets out the exchange rates to be used for specified foreign currencies in relation to the payment of fees. This instrument is relevant to the Citizenship Regulation because it allows a person who makes an application under the Citizenship Act to pay a citizenship application fee in a foreign currency at an exchange rate specified in the conversion instrument (see subsection 16(4) of the Citizenship Regulation).

Definition of 'places and currencies instrument'

This item also substitutes the definition of 'places and currencies instrument' in subsection 16(7) of the Citizenship Regulation with 'places and currencies instrument means the Migration (LIN 20/002: Places and Currencies for Paying of Fees) Instrument 2020 as in force on 1 January 2020'.

The definition of 'places and currencies instrument' is being amended to incorporate by reference a new instrument titled Migration (LIN 20/002: Places and Currencies for Paying of Fees) Instrument 2020. This instrument, made under paragraphs 5.36(1)(a) and (b) of the Migration Regulations, commences on 1 January 2020 and replaces the Migration (LIN 19/042: Places and Currencies for Paying of Fees) Instrument 2019.

The places and currencies instrument sets out the places and currencies in which fees may be paid. This instrument is relevant to the Citizenship Regulation because it allows a person who makes an application under the Citizenship Act to pay a citizenship application fee in a place, and in the currency, that is specified in the places and currencies instrument (see subsections 16(2) and (3) of the Citizenship Regulation).

Purpose of amendments

Australian Government offices overseas routinely collect Australian citizenship application fees. The amendments made by this item ensure that persons may make the payment of a citizenship application fee in a specified foreign country, and in a foreign currency, at a defined and updated exchange rate.

The conversion instrument and the places and currencies instrument are re-made every six months under the Migration Regulations, so that the content of the instruments can be updated to reflect changes in exchange rates, specified foreign currencies and the places where application fees may be paid. As a consequence, subsection 16(7) of the Citizenship Regulation must also be amended so that it refers to and incorporates the re-made instruments.

The Citizenship Act does not currently allow for the making of a legislative instrument under the Citizenship Regulation to specify matters in relation to the collection of citizenship application fees in foreign countries and foreign currencies. Instead, the Citizenship Regulation incorporates by reference relevant instruments made under the Migration Regulations to specify the foreign countries where a fee may be paid, the currency that can be accepted in each listed country and the currency exchange rate that must be applied.

The Migration (LIN 20/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 and the Migration (LIN 20/002: Places and Currencies for Paying of Fees) Instrument 2020 are both made under Part 5 of the Migration Regulations and are not subject to disallowance (see item 20(b), regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). These instruments are, therefore, incorporated in the Citizenship Regulation under paragraph 14(1)(b) of the Legislation Act 2003 (the Legislation Act).

Due to the operation of paragraph 14(1)(b) and subsection 14(2) of the Legislation Act, the Citizenship Regulation may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force from time to time. Rather, the legislative instruments made under paragraphs 5.36(1A)(a), 5.36(1)(a) and 5.36(1)(b) of the Migration Regulations can only be incorporated as in force at the time of incorporation (being 1 January 2020).

Both the Migration (LIN 20/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 and the Migration (LIN 20/002: Places and Currencies for Paying of Fees) Instrument 2020 will be freely available online on the Federal Register of Legislation.

Item 2 - In the appropriate position in Part 4

This item inserts section 25 entitled 'Application of amendment made by Schedule 1 to the Home Affairs Legislation Amendment (2019 Measures No. 1) Regulations 2019'.

Section 25 provides that the amendment of section 16 made by Schedule 1 to the Regulations applies in relation to an application made under the Act on or after 1 January 2020.

Schedule 2 - Visa application charges

Migration Regulations 1994

This Schedule amends the Migration Regulations to increase certain first instalment visa application charges (VACs) for the Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visas. The amendments increase the relevant VACs in accordance with the 2019-20 forecast consumer price index (CPI). In addition, the charges are increased by a further 5.4 per cent in line with the one-off Visa Application Charge - uplift measure announced as part of the 2019-20 Budget. This means that the relevant VACs are increased by the cumulative total of the 2018-19 CPI increase and the additional uplift measure. In effect, each VAC is increased by five dollars, from $35 to $40.

The two VACs amended by this Schedule were included in the Government's decisions to increase first instalment VACs, but were not indexed by the Migration Amendment (Visa Application Charges) Regulations 2019. These Regulations therefore apply the increases to the Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visas from 16 November 2019. This ensures that the VAC for applying for these visas is consistent with the VAC for applying for a Protection (Class XA) visa, which was indexed from $35 to $40 on 1 July 2019. The adjusted VACs are within limits calculated under the Migration (Visa Application) Charge Act 1997.

Item 1- Subparagraph 1403(2)(a)(ii) of Schedule 1 (table item 1)

This item amends the amount to be paid for the first instalment of the VAC for the Temporary Protection (Class XD) visa (Subclass 785 (Temporary Protection) visa) as follows:

Applicable Charge	Previous VAC	New VAC
Base application charge	$ 35	$ 40

Item 2- Subparagraph 1404(2)(a)(ii) of Schedule 1 (table item 1)

This item amends the amount to be paid for the first instalment of the VAC for the Safe Haven Enterprise (Class XE) visa (Subclass 790 (Safe Haven Enterprise) visa) as follows:

Applicable Charge	Previous VAC	New VAC
Base application charge	$ 35	$ 40

Item 3 - In the appropriate position in Schedule 13

This item inserts new Part 87 in Schedule 13 to the Migration Regulations. New clause 8701would provide that the amendments made by items 1 and 2 of Schedule 2 to the Regulations apply in relation to visa applications made on or after 16 November 2019.

Schedule 3 - Amendments relating to the Migration Amendment (New Skilled Regional Visas) Regulations 2019

Part 1 - Amendments commencing 16 November 2019

Migration Regulations 1994

Item 1 - Regulation 1.03 (definition of transitional 457 worker)

This item amends the definition of transitional 457 worker in regulation 1.03 of the Migration Regulations so that it means a person who held a Subclass 457 (Temporary Work (Skilled)) visa at any time occurring on or after 18 April 2017.

Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the New Skilled Regional Visas Regulations) inserts a definition of transitional 457 worker in regulation 1.03 of the Migration Regulations, to commence on 16 November 2019. The term was defined by those Regulations to mean a person who on 18 April 2017 held a Subclass 457 (Temporary Work (Skilled)) visa, or was an applicant for a Subclass 457 visa on that date and the visa was subsequently granted.

The term is used in amendments made by the New Skilled Regional Visas Regulations which have the effect of closing applications for a Subclass 187 (Regional Sponsored Migration Scheme) visa to further applicants from 16 November 2019 except to applicants who are (among others) a transitional 457 worker applying for a Subclass 187 visa in the Temporary Residence Transition stream. The amendments also close applications for approval of employer nominations from 16 November 2019 where the nomination is in respect of a Subclass 187 visa unless the person identified in the nomination is (among others) a transitional 457 worker seeking a Subclass 187 visa in the Temporary Residence Transition stream.

The aim is to ensure that persons coming within the definition of transitional 457 worker who are in the course of satisfying the residence requirement for a permanent Subclass 187 visa in the Temporary Residence Transition stream are not disadvantaged by the closing of the visa to further applicants on 16 November 2019 but may continue to apply for a Subclass 187 visa after that date.

The definition inserted by the New Skilled Regional Visas Regulations limits the application of the term to persons who held or had applied for a Subclass 457 visa on 18 April 2017. However, it has since come to notice that the persons who are intended to benefit from this transitional arrangement could have applied for a Subclass 457 visa up until 18 March 2018 (when the Subclass 457 visa was closed to new applications). It is intended that these individuals would be captured by the definition of transitional 457 worker, provided they are subsequently granted a Subclass 457 visa.

The amendment made by this item rectifies this oversight and ensures that applications for Subclass 187 visas in the Temporary Residence Transition Stream will remain open for the intended group of Subclass 457 visa holders.

The definition will also capture some individuals who cannot be granted a Subclass 187 visa. This is a result of the limited criteria for approval of nominations in subregulation 5.19(5) (this provision sets out additional requirements for approval of a nomination relating to a visa in a Temporary Residence Transition stream). It is intended that subregulation 5.19(5) will operate to prevent the approval of a nomination in those circumstances. For example, if the nomination relates to a person who held a Subclass 457 visa on or after 17 April 2017, but now holds a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream, the nomination can only be approved if the person identified in the nomination is specified in a legislative instrument made by the Minister for the purposes of subparagraph 5.19(5)(a)(iii).

This amendment commences immediately after the commencement of Schedule 2 to the New Skilled Regional Visas Regulations on 16 November 2019 (see section 2 of this Instrument, above). This will ensure that applications for the Subclass 187 visa remain open to the intended applicants.

Item 2 - After subparagraph 2.03A(3)(a)(iia)

This item amends subparagraph 2.03A(3)(a)(iia) to prescribe the Skilled Employer Sponsored Regional (Provisional) (Class PE) visa for the purposes of regulation 2.03A ('criteria applicable to de facto partners'), with effect from 16 November 2019.

Subregulation 2.03A(3) provides that, for the visas listed in that provision, if a person claims to be in a de facto relationship for the purposes of a visa application, the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of twelve months ending immediately before the date of the application, unless there are compelling and compassionate circumstance for the grant of the visa.

Subregulation 2.03A(3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.

Section 2E provides that:

Subclass 494 is the only Subclass of the Skilled Employer Sponsored Regional (Provisional) (Class PE) visa, which was created by the New Skilled Regional Visas Regulations, and is the same kind of visa as the visas already listed in that provision (that is, permanent visas, General Skilled Migration visas and the provisional Business Skills visas). Prescribing Subclass 494 visa for the purposes of the provision maintains the intended outcome.

The second new Skilled Regional provisional visa created by the New Skilled Regional Visas Regulations - the Skilled Work Regional (Provisional) (Class PS) visa (Subclass 491) - is already captured by the provision, as the New Skilled Regional Visas Regulations amend the definition of General Skilled Migration visa to include that visa. As a result, subregulation 2.03A(3) will apply to Subclass 491 visas from 16 November 2019.

Item 3 - Subparagraph 8101(1)(b)(ii) of Schedule 13

Clause 8101, titled Transitional provisions in relation to Subclass 187 (Regional Sponsored Migration Scheme) visa, was inserted by the New Skilled Regional Visas Regulations and provides for the finalisation of nominations that relate to the Subclass 187 visa, to take account of the arrangements for the closure of that visa on 16 November 2019.

Item 3 clarifies that clause 8101 does apply (meaning the nomination is taken to be withdrawn) where the person identified in the nomination is not a transitional 457 worker or a transitional 482 worker on 16 November 2019, but later becomes one.

Part 2 - Amendments commencing 16 November 2022

Migration Regulations 1994

Item 4 - Paragraph 1139(3)(d) of Schedule 1

This item amends paragraph 1139(3)(d) of Schedule 1 to the Migration Regulations by omitting the word 'must' and substituting the word 'may'.

New item 1139 (Permanent Residence (Skilled Regional) (Class PR)) was inserted in Schedule 1 to the Migration Regulations by Schedule 3 to the New Skilled Regional Visas Regulations, to set out the requirements for making a valid application for the new Subclass 191 (Permanent Residence (Skilled Regional)) visa. The new visa commences on 16 November 2022.

Paragraph 1139(3)(d) provides that 'An application by a person claiming to be a member of the family unit of a person who is an applicant for a Permanent Residence (Skilled Regional)(Class PR) visa must be made at the same time as, and combined with, the application by that person'. This reflects the wording of new paragraph 191.311(b), which will be inserted in Schedule 2 to the Migration Regulations on 16 November 2022, and requires that a secondary applicant must have 'made a combined application with the [primary Subclass 191] visa holder.’

It has since come to notice, however, that the requirement in Schedule 1 that the secondary application 'must be made at the same time as' the application by the person seeking to satisfy the primary criteria may preclude the operation of regulation 2.08A (Addition of certain applicants to certain applications for permanent visas), which allows the addition of a spouse, de facto partner or dependent child to an application by a primary applicant at any time up until that person's application is decided.

The amendment made by this item clarifies the intention that regulation 2.08A is intended to operate in respect of Subclass 191 visa applications to allow an application by a spouse, de facto partner or dependent child to be added as a combined application at any time up until the application is decided. Added secondary applicants are then able to satisfy the requirement at paragraph 191.311(b) by virtue of paragraph 2.08A(1)(f) which provides that an application made under regulation 2.08A is taken to have been combined with the original application and to have been made at the same place and in the same form as that application.

This amendment commences immediately after the commencement of Schedule 2 to the New Skilled Regional Visas Regulations on 16 November 2022. This ensures that regulation 2.08A operates to allow the addition of these applications at any time from the commencement of the new Subclass 191 visa, as intended.

Schedule 4 - Other amendments

Migration Regulations 1994

Item 1 - Regulation 1.03 (definition of Employment Minister)

This item repeals the definition of Employment Minister in regulation 1.03 of the Migration Regulations, and substitutes a new definition.

The term Employment Minister was previously defined as meaning 'the Minister administering the Fair Entitlements Guarantee Act 2012'. The substituted new definition of Employment Minister refers to 'the Minister responsible for employment policy, including employment services'.

Prior to 29 May 2019, the Minister administering the Fair Entitlements Guarantee Act 2012 (the FEG Act) was the Minister for Jobs and Industrial Relations. Therefore, for the purposes of the definition in the Migration Regulations, the Employment Minister was the Minister for Jobs and Industrial Relations. The term Employment Minister is used in the definition of labour agreement in regulation 1.03, and in regulation 2.26B (which deals with relevant assessing authorities for a skilled occupation) of the Migration Regulations.

Under the Administrative Arrangements Order of 29 May 2019, responsibility for administering the FEG Act was transferred to the Attorney-General. However, the Minister dealing with matters such as employment policy, including employment services, is the Minister for Employment, Skills, Small and Family Business. For the purposes of the Migration Regulations, the definition of Employment Minister is intended to refer to that Minister.

On 27 June 2019 the Governor-General, acting under section 19B of the Acts Interpretation Act 1901, made the Acts Interpretation Amendment Substituted Reference Order 2019 (the SRO). The effect of the SRO is that from 29 May 2019, the reference to 'the Minister administering the FEG Act' in the definition of Employment Minister in regulation 1.03 of the Migration Regulations was substituted with a reference to 'the Minister responsible for employment policy, including employment services’. The definition of Employment Minister has therefore referred to the correct Minister at all relevant times. However, the SRO did not have the effect of amending the wording of the definition in regulation 1.03. The purpose of this item is therefore to update the wording to align with the reference substituted by the SRO.

The new definition is in terms of the responsibilities of the intended Minister, rather than in terms of legislation administered by the Minister. This ensures that the definition of Employment Minister for the purposes of the Migration Regulations will always refer to the intended Minister irrespective of any future portfolio changes to the legislation administered by Ministers.

Item 2 - Subregulation 2.03A(5)

On 13 March 2019 the Acts Interpretation (Registered Relationships) Regulations 2019 (the 2019 Registered Relationships Regulations) repealed and replaced the Acts Interpretation (Registered Relationships) Regulations 2008 (the 2008 Registered Relationships Regulations). This item repeals a reference to the 2008 Registered Relationships Regulations in subregulation 2.03A(5), and instead refers to a 'registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901'. This approach will ensure the reference remains current in the event that the 2019 Registered Relationships Regulations are repealed and replaced in future.