Commonwealth Numbered Regulations - Explanatory Statements
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MIGRATION AMENDMENT (SUBCLASS 600 AND 870 VISAS) REGULATIONS 2019 (F2019L01653)
EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Act 1958
Migration Amendment (Subclass 600 and 870 Visas) 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.
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.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Migration Amendment (Subclass 600 and 870 Visas) Regulations 2019 (the Regulations) is to amend certain provisions of the Migration Regulations 1994 (the Migration Regulations) that relate to Subclass 600 and 870 visas.
Schedule 1 to the Regulations ensures that independent merits review of a decision to refuse a Subclass 870 (Sponsored Parent (Temporary)) visa (a Subclass 870 visa) is available in relation to persons who are outside Australia at the time of application for the visa and who are sponsored at the time of a decision to refuse the visa. Independent merits review is already available in relation to persons who are in Australia at the time of application and who are sponsored at the time of the decision. The effect of these amendments is that merits review is available in relation to all decisions to refuse an application for a Subclass 870 visa where the applicant has an approved sponsor at the time of the decision, regardless of whether the applicant was in or outside Australia when they applied for the visa.
Schedule 2 to the Regulations creates new visa condition 8609 requiring visa holders to notify Immigration (in effect, the Department of Home Affairs (the Department)) about changes to their personal details within 14 days after the change occurs. New condition 8609 is imposed on Subclass 600 (Visitor) visas in the Frequent Traveller Stream and Subclass 870 visas, instead of existing condition 8550 which requires visa holders to notify the Minister of a change in personal details not less than 2 working days before the change is to occur. Unlike condition 8550, new condition 8609 does not require visa holders to report any change to an online profile or user name, but does require them to report any change to their passport details.
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 reference for Schedule 1 is, 25760 and for Schedule 2 is, 25441.
The Subclass 870 visa was created on 17 April 2019 by the Migration Amendment (Temporary Sponsored Parent Visa and Other Measures) Regulations 2019 (the Subclass 870 Regulations). Significant consultations were undertaken in relation to the introduction of that visa, as outlined in the explanatory statement to the Subclass 870 Regulations. These included the release of a discussion paper, 'Introducing a temporary visa for parents', on 23 September 2016 and targeted consultation sessions with key stakeholders.
The following Commonwealth government agencies were also consulted in relation to the Subclass 870 Regulations: the Department of the Prime Minister and Cabinet; the Attorney-General's Department; the Treasury; the Department of Finance; the Australian Taxation Office; the Department of Social Services; the Department of Health; and the Department of Human Services.
The Attorney-General's Department was consulted on the amendments made by Schedule 1 to the Regulations, but no further consultation was considered necessary or appropriate in light of the beneficial effect of these changes. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act) which requires consultations where appropriate and reasonably practicable.
The amendments made by Schedule 2 to the Regulations have, in part, been made in response to stakeholder representations, including from the Federation of Ethnic Communities' Councils of Australia.
Schedule 1 to the Regulations commences on the day after registration in order to come into effect as soon as possible. No corresponding changes to departmental systems are required.
Schedule 2 to the Regulations commences on 29 February 2020, to align with changes to departmental systems.
The Department follows standard practices to notify clients about the changes, including updating its website and notifying peak bodies.
The amendments made by Schedule 1 apply in relation to a decision to refuse to grant a visa if the decision is made on or after the commencement of Schedule 1, whether the visa application was made before, on or after that commencement. No decisions to refuse a Subclass 870 visa application have been made at the time of commencement. This ensures that independent merits review is available in relation to all relevant refusal decisions, regardless of whether the applicant was in or outside Australia when they made their visa application. The amendments made by Schedule 2 apply to a visa where the application for the visa is made on or after commencement.
Further details of the Regulations are set out in Attachment C.
The Migration Act specifies 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.
In addition, the following provisions of the Migration Act may apply:
ยท subsection 41(1), which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions
* subsection 338(9), which provides that a decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision; and
* paragraph 347(2)(d), which provides that, an application for review may only be made by, if the Part 5-revieable decision is covered by subsection 338(9) - the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Subclass 600 and 870 Visas) 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 - Amendments commencing day after registration
Overview
The Subclass 870 (Sponsored Parent (Temporary)) visa (Temporary Sponsored Parent visa) was created on 17 April 2019 by the Migration Amendment (Temporary Sponsored Parent Visa and Other Measures) Regulations 2019 (the Subclass 870 Regulations).
Schedule 1 to the legislative instrument ensures that independent merits review of a decision to refuse a Temporary Sponsored Parent visa is available in relation to persons who are outside Australia at the time of application for the visa and who are sponsored at the time of a decision to refuse the visa. Independent merits review is already available in relation to persons who are in Australia at the time of application and who are sponsored at the time of the decision. The effect is that merits review is available in relation to decisions to refuse an application for a Temporary Sponsored Parent visa where the applicant has an approved sponsor at the time of the decision, regardless of whether the applicant was in or outside Australia when they applied for the visa.
In relation to non-citizens who are outside Australia at the time of application for the visa, the parent sponsor may make the application for review, under paragraph 347(2)(d) of the Migration Act 1958 (the Act) and new paragraph 4.02(5)(q) of the Migration Regulations 1994 (the Regulations). Parent sponsor is defined in regulation 1.03 to mean a person who has been approved as a family sponsor in relation to the parent sponsor class under subsection 140E(1A) of the Act. This reflects the general position in the Act and the Regulations that, where a visa application is made by an applicant who is offshore at the time of application but is sponsored by an approved sponsor, it is the sponsor who may make an application for merits review of the refusal decision, not the visa applicant.
Decisions to refuse a Temporary Sponsored Parent visa application where the applicant does not have an approved sponsor at the time of the decision are not Part 5-reviewable decisions under the Act and are not subject to independent merits review. A Temporary Sponsored Parent visa cannot be granted to an applicant who does not have an approved sponsor. It would therefore be inefficient and futile to allow applicants who do not have an approved sponsor at the time of decision to access merits review.
Human rights implications
These amendments have been considered against the seven key international treaties, in particular the following articles of the International Covenant on Civil and Political Rights (ICCPR), which state:
Article 17
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.
Article 23
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The amendments positively engage the rights set out in Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) to the extent that it supports the underlying purpose of the Temporary Sponsored Parent Visa. That is, to allow Australia to benefit socially by uniting families on a temporary basis, who might not otherwise have the opportunity to spend extended periods of time together in Australia. It does this byproviding that merits review is available in relation to decisions to refuse an application for a Temporary Sponsored Parent visa where the applicant has an approved sponsor at the time of the decision, regardless of whether the applicant was in or outside Australia when they applied for the visa.
If a visa application is refused at merits review, this would not be arbitrary interference with the family in breach of Article 17 of the ICCPR. This is because the refusal of a Temporary Sponsored Parent visa would be based on reasonable, objective, pre-determined and publicly available criteria, that is the criteria for the grant of this visa as set out in legislation. Further, there is no right to family reunification under international law and this visa is one of a number of visa options for families seeking to reunite in Australia. Overseas parents seeking permanent reunion with their family in Australia are able to consider other visa options to travel to Australia. It also does not prevent parents from visiting their families using other visa options, utilising other means of communication between family members, for example telephone calls, or indeed sponsors and other family members visiting parents in their country of origin.
Conclusion
The amendments are compatible with human rights because they support Articles 17 and 23 of the ICCPR.
Schedule 2 - Amendments commencing 29 February 2020
Overview
Schedule 2 to the legislative instrument creates new visa condition 8609 requiring visa holders to notify Immigration, in effect the Department of Home Affairs (the Department), about changes to their personal details within 14 days after the change occurs, specifically changes to the visa holder's name, residential address, email, phone number and passport details. The amendments impose new condition 8609 on Subclass 600 (Visitor) visas in the Frequent Traveller Stream (Visitor (FTS) visas) and Temporary Sponsored Parent visas. Before these amendments, Visitor (FTS) visas and Temporary Sponsored Parent visas were subject to condition 8550, which required these visa holders to notify the Minister of a change in personal details not less than 2 working days before the change occurred. As such, in effect, these amendments replace the requirement to report a change in personal details from 2 working days before the change occurred with a requirement to report any such change within 14 working days of its occurrence.
Unlike condition 8550, new condition 8609 does not require visa holders to report any change to an online profile or user name, but does require them to report any change to their passport details. The amendments made by Schedule 2 are intended to benefit Visitor (FTS) visa holders and Temporary Sponsored Parent visa holders by giving them more time to report to the Department about changes to their personal details, and by not requiring them to report on certain information.
Purpose of amendments
The purpose of these amendments is to make the 'reporting requirements' about changes to personal details more suited to Visitor (FTS) visa holders and Temporary Sponsored Parent visa holders.
Visitor (FTS) visas may be valid for up to ten years, and the imposition of condition 8609, including the requirement to provide updated passport details, recognises that visa holders' contact information may change over this time. Similarly, condition 8609 is imposed on Temporary Sponsored Parent visas because the validity of these visas can be up to five years.
The information which condition 8609 requires visa holders to keep updated enables the Department to communicate with them when, and if, required.
The amendments do not substantially alter the existing requirement for these visa holders to keep the Department updated about changes to their personal contact details, apart from the timeframes within which they must notify the Department, but ensure that they report only on the information required, and within a longer time-frame.
Human rights implications
These amendments engage the prohibition on unlawful and arbitrary interference with privacy as set out in Article 17 of the ICCPR which sets out:
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.
The amendments positively engage Article 17 by narrowing the categories of personal information required to be updated to the Department by Visitor (FTS) visa holders and Temporary Sponsored Parent visa holders, and by providing a less burdensome timeframe within which these updates need to be provided.
The requirement to provide updates to the Department when specific personal information changes is necessary so that the Department maintains the ability to communicate with visa holders over the five or ten year validity of these visas, during which time personal details can change. The requirement only extends to that information which is necessary for the Department to communicate and identify visa holders and so is a reasonable and proportionate change in the response to the underlying need.
Additionally, the collection, storage and disclosure of personal information, including that required by the amendments, is authorised by existing Australian law and do not alter the existing protections that apply to personal information under Australian law.
Conclusion
The amendments are compatible with human rights because they support Article 17 of the ICCPR.
The Hon David Coleman MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
ATTACHMENT C
Details of the Migration Amendment (Subclass 600 and 870 Visas) Regulations 2019
Section 1 - Name
This section provides that the name of this instrument is the Migration Amendment (Subclass 600 and 870 Visas) Regulations 2019 (the Regulations).
Section 2 - Commencement
This section provides for 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 the day after registration in order to come into effect as soon as possible. No corresponding changes to departmental systems are required.
Schedule 2 commences on 29 February 2020, to align with the roll-out of changes to the relevant departmental systems.
Section 3 - Authority
This section provides that the instrument is made under 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 - Amendments commencing day after registration
Migration Regulations 1994
Item 1 - At the end of subregulation 4.02(4)
This item amends subregulation 4.02(4) which prescribes Part 5-reviewable decisions under subsection 338(9) of the Migration Act.
This item adds new paragraph 4.02(4)(r) to provide that the following decision is a Part 5 reviewable decision:
* a decision to refuse to grant a Subclass 870 (Sponsored Parent (Temporary)) visa (a Subclass 870 visa) to a non-citizen if the non-citizen:
(i) is outside Australia at the time of application; and
(ii) is sponsored by a parent sponsor at the time the decision to refuse to grant the visa is made.
This amendment ensures that independent merits review of a decision to refuse a Subclass 870 visa is available in relation to persons who are outside Australia at the time of application for the visa and who are sponsored at the time of a decision to refuse the visa. Independent merits review is already available in relation to persons who are in Australia at the time of application and who are sponsored at the time of the decision.
No decisions to refuse a Subclass 870 visa application have been made at the time of commencement. As a result, the effect of these amendments is that all merits review is available in relation to decisions to refuse an application for a Subclass 870 visa where the applicant has an approved sponsor at the time of the decision, regardless of whether the applicant was in or outside Australia when they applied for the visa.
Decisions to refuse an application where the applicant does not have an approved sponsor at the time of the decision are not Part 5-reviewable decisions and are not subject to independent merits review. A Subclass 870 visa cannot be granted to an applicant who does not have an approved sponsor. Whether the applicant has an approved sponsor at the time of decision is an objective fact, and it would therefore be inefficient and futile to allow applicants who do not have an approved sponsor at the time of decision to access merits review.
Item 2 - At the end of subregulation 4.02(5)
This item amends subregulation 4.02(5) which prescribes the persons who may make an application for merits review, under paragraph 347(2)(d) of the Migration Act.
This item adds new paragraph 4.02(5)(q) to provide that an application for review of a decision prescribed in paragraph 4.02(4)(r) may be made by the parent sponsor.
'Parent sponsor' is defined in regulation 1.03 to mean a person who has been approved as a family sponsor in relation to the parent sponsor class under subsection 140E(1A) of the Migration Act.
In relation to non-citizens who are in Australia at the time of application for the visa, the non-citizen may make an application for review, under paragraph 347(2)(a) of the Migration Act. In relation to non-citizens who are outside Australia at the time they apply for the visa, the parent sponsor may make an application for review, under paragraph 347(2)(d) of the Migration Act and new paragraph 4.02(5)(q). This reflects the general position in the Migration Act and the Migration Regulations 1994 (the Migration Regulations) that, where a visa application is made by an applicant who is offshore at the time of application but is sponsored by an approved sponsor, it is the sponsor who may make an application for merits review of the refusal decision, not the visa applicant.
Item 3 - In the appropriate position in Schedule 13
This item amends Schedule 13 to the Migration Regulations (titled Transitional Arrangements) to insert new Part 88 and new clause 8801. The purpose of new Part 88 is to explain how the amendments made by these Regulations apply.
New clause 8801 provides that the amendments made by Schedule 1 apply in relation to a decision to refuse to grant a visa if the decision is made on or after the commencement of Schedule 1, whether the visa application was made before, on or after that commencement. This ensures that independent merits review is available in relation to all relevant refusal decisions, regardless of whether the applicant was in or outside Australia when they made their Subclass 870 visa application.
Schedule 2 - Amendments commencing 29 February 2020
Migration Regulations 1994
Items 1-3 - Clause 600.615 of Schedule 2 and clause 870.611 of Schedule 2
These items amend clauses 600.615 and 870.611 of Schedule 2 to the Migration Regulations which set out the visa conditions that must be imposed on Subclass 600 (Visitor) visas in the Frequent Traveller Stream (Visitor (FTS) visas) and Subclass 870 visas.
Before these amendments, Visitor (FTS) visas and Subclass 870 visas were subject to condition 8550, which required these visa holders to notify the Minister of any change in their personal details not less than 2 working days before the change occurred. A change in personal details included a change to any of the following contact information: the visa holder's name, address, phone number, email, online profile and user name.
The amendments made by these items impose new visa condition 8609 (see item 4 below) on Visitor (FTS) visas and Subclass 870 visas, instead of condition 8550.
New condition 8609 requires visa holders to notify Immigration of a change, within 14 days after the change occurs, to any of the following information: the visa holder's name, residential address, email, phone number and passport details. In effect, these amendments replace the requirement to report a change in personal details from 2 working days before the change occurred with a requirement to report any such change within 14 working days of its occurrence. Unlike condition 8550, new condition 8609 does not require visa holders to report any change to an online profile or user name, but does require them to report any change to their passport details. This requirement is consistent with reporting condition 8578, which is imposed on the Subclass 491 and 494 visas (the two provisional Skilled Regional visas). That condition is not appropriate for these visas as it also requires reporting on employment matters.
Visitor (FTS) visas may be valid for up to ten years, and the imposition of condition 8609 recognises that visa holders' contact information may change over this time. Similarly, condition 8609 is imposed on Subclass 870 visas because the validity of these visas can be up to five years.
The information which condition 8609 requires visa holders to keep updated enables the Department of Home Affairs (the Department) to communicate with them when, and if, required.
Item 4 - At the end of Schedule 8
This item inserts new visa condition 8609 in Schedule 8 (titled Visa conditions) to the Migration Regulations.
New condition 8609 requires visa holders to notify Immigration of a change, within 14 days after the change occurs, to any of the following information: the visa holder's name, residential address, email, phone number and passport details. 'Immigration' is defined in regulation 1.03 of the Migration Regulations to mean the Department administered by the Minister administering the Migration Act 1958, which is, at the time of making this amendment, the Department. This new visa condition is imposed on the Visitor (FTS) visa and the Subclass 870 visa.
Item 5 - In the appropriate position in Part 88 of Schedule 13
This item amends Schedule 13 to the Migration Regulations (titled Transitional Arrangements) to insert new clause 8802 in new Part 88 of Schedule 13. The purpose of new Part 88 is to explain how the amendments made by these Regulations apply.
New clause 8802 provides that the amendments in Items 1 to 3 of Schedule 2 to these Regulations apply in relation to a visa if the application for the visa is made on or after 29 February 2020.