Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023

The Migration Amendment (Location Requirements for Grant of Visa) Regulations 2023 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to:

·         provide flexibility in relation to Partner (Subclass 309 and 820) and Temporary Graduate (Subclass 485) visas by allowing applicants to be either in or outside Australia at the time of visa grant; and

·         provide Subclass 309 Partner visa applicants with standing to apply for merits review themselves, rather than the sponsor, to facilitate better access for family violence victims and other compassionate circumstances. This is already available for Subclass 820 Partner visa applicants.  

Since 2020, various concessions have been introduced to assist visa applicants who were affected by the COVID-19 Pandemic-related travel restrictions and border closures. These concessions included removing the requirements in relation to where the applicant must be located at the time of visa grant.  These concessions were available during a concession period (the COVID-19 concession period) which commenced on 20 February 2020 and is scheduled to end on 25 November 2023.

These amendments ensure that the flexibility to be either in or outside Australia at the time of visa grant remains in place for these visas even after the COVID-19 concession period ends, and also extends this flexibility to the Subclass 820 Partner visa to align with the Subclass 309 Partner visa.  These amendments provide a beneficial flexibility that permits the relevant visa to be granted regardless of where the applicant is located at the time of visa grant.  

The Regulations also make consequential amendments to ensure that access to merits review is retained. They also provide for a Subclass 309 visa applicant to have standing to apply for merits review directly, rather than the sponsor.  This facilitates access to merits review for applicants who may be affected by circumstance such as family violence and to align with the onshore Subclass 820 visa which provides standing to the applicant rather than the sponsor.

The matters dealt with in the 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 visa settings in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions. 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.

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

The Office of Impact Analysis was consulted prior to making the Amendment Regulations, and advised that an impact analysis was not required. The OIA reference numbers are OIA 23-05547 and 23-05777.

Formal public consultation on these matters specifically was not considered necessary as the amendments are entirely beneficial and address concerns that had been raised through public consultations in the context of trafficking and access to the family violence provisions outside Australia. The Administrative Appeals Tribunal was consulted on the changes to give standing to Subclass 309 applicants to seek merits review. The amendments do not substantially alter the operation of the existing legislative scheme. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act) which requires that appropriate and reasonably practicable consultation be undertaken. 

The Migration Regulationsare exempt from sunsetting pursuant to item 38A of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015.  The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:

·         is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;

·         would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and

·         would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act.

The Migration Act specifies no conditions that need to be satisfied before the power to make the Amendment Regulations may be exercised.  

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

The amendments commence on the day after registration. 

Written by Ross Ahmadzai

27 Nov, 2023

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