Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024

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
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 Migration Amendment (Dependent Secondary Partner Visa Applicants) Regulations 2024 (the
Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations), to
enable a cohort of secondary applicants for Subclass 309 (Partner (Provisional)) and Subclass 100
(Partner) visas who, due to the impact of the now revoked Ministerial Direction 801
, no longer meet
the age requirement for the visa, to be eligible for the grant of the visa. Ministerial Direction 80 gave
the lowest processing priority to applications for Family visas where the sponsor was a permanent
resident who entered Australia as an Unauthorised Maritime Arrival, and was revoked on 9 February

  1. A ‘secondary’ applicant is generally a close family member of the primary applicant, who in this
    case is the partner of an Australian citizen or permanent resident. The Amendment Regulations
    enables a secondary applicant to be eligible for the grant of the visas as a ‘dependent’ of the primary
    applicant rather than as a member of the family unit (MoFU).
    The definition of MoFU under regulation 1.12 of the Migration Regulations includes an age limit
    relating to who is considered to be a ‘child’ of another person (the family head, who is generally the
    primary applicant for a visa) for most applicants. The usual rule under the MoFU definition is that a
    child must be either under 18, or under 23 and dependent on the family head, or wholly reliant on the
    family head due to incapacitation for work as a result of the total or partial loss of the person’s bodily
    or mental functions.
    The now revoked Ministerial Direction 80 provided the lowest processing priority to Family visa
    applications, including applications for a Subclass 309 or Subclass 100 visa, where the sponsor was
    a permanent visa holder who arrived in Australia as an unauthorised maritime arrival (UMA),
    resulting in extended processing times for such applications. As a result of these extended processing
    times, a cohort of secondary applicants have passed the age of 23 and are no longer able to satisfy the
    criteria requiring them to be a MoFU of the primary applicant at the time of decision.
    The Amendment Regulations amend the relevant criteria to provide that applicants in these
    circumstances need only satisfy the Minister that they remain dependent on the primary applicant at

    Ministerial Direction 80, Order for considering and disposing of Family visa applications under s47 and s51 of the
    Migration Act 1958, was made under s499 of the Migration Act 1958, on 21 December 2018.
    Authorised Version Explanatory Statement registered 02/04/2024 to F2024L00417
    the time the decision is made on their application, regardless of their age. The effect of this change is
    limited to those visa applications made before 9 February 2023 but not yet finally determined.
    The matters dealt with in the Amendment Regulations are appropriate for implementation in
    regulations rather than by parliamentary enactment. It has been the consistent practice of the
    Government of the day to provide for detailed matters of visa criteria and visa conditions in the
    Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides
    for these matters to be prescribed in regulations.
    The current Migration Regulations have been in place since 1994, when they replaced regulations
    made in 1989 and 1993. Providing for these details to be in delegated legislation rather than primary
    legislation gives the Government the ability to effectively manage the operation of Australia’s visa
    program and respond quickly to emerging needs.

Written by Ross Ahmadzai

5 Apr, 2024

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