Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023

The Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023 (the amending Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for the power to certify an applicant for a Subclass 200 (Refugee) visa or a Subclass 201 (In-country Special Humanitarian) visa as being a member of a class of persons specified by the Minister and as being at risk of harm as a result of the person’s membership of that class to be delegated by ‘relevant Ministers’ to senior executive-level staff within certifying agencies (the Attorney-General’s Department (AGD), the Department of Foreign Affairs and Trade (DFAT), the Department of Defence and the Australian Federal Police (AFP)). This is to achieve significant administrative efficiencies for these agencies, which will benefit affected applicants by reducing processing times.

Established in 2012, the Afghan Locally Engaged Employee (LEE) program offers priority processing of humanitarian visa applications to certified, eligible locally engaged Afghan employees at risk of harm due to their employment in support of Australia’s mission in Afghanistan. 

The Afghan LEE program is implemented through alternative criteria for the Subclass 200 (Refugee) and Subclass 201 (In-country Special Humanitarian) visas. An applicant for either of these visas may satisfy the primary criteria if they meet the requirements of either subclause 200.211(1A) or 201.211(1A) of Schedule 2 to the Migration Regulations, as relevant. Paragraphs 200.211(1A)(a) and 201.211(1A)(a) allow the Minister to specify by instrument one or more classes of persons eligible for resettlement under this policy. The Minister is required to consult with the Prime Minister, the Minister for Finance, and other relevant government ministers before making such an instrument.

Paragraphs 200.211(1A)(b) and 201.211(1A)(b) of Schedule 2 to the Migration Regulations provide that the applicant must have been certified by a relevant Minister as falling within one of the classes of persons specified in the instrument. The certification must also state that the applicant is at risk of harm because they fall within this class of persons.

The amending Regulations enable a delegate of a ‘relevant Minister’ to certify applicants for the purposes of paragraphs 200.211(1A)(b) and 201.211(1A)(b) of Schedule 2 to the Migration Regulations, which will allow for efficiency in the Afghan LEE certification process and implements recommendation 6 of Dr. Vivienne Thom’s review of the Afghan LEE program.

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

The matters dealt with in the amending 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 criteria and 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, as can be seen in the authorising provisions listed in Attachment A. These include, for example, subsection 31(3), which provides that Regulations may prescribe criteria for a visa or visas of a specified class.

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.

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 Impact Analysis (OIA) has been consulted in relation to the amendments. No Impact Analysis is required. The OIA consultation reference is OIA23-05753.

Consultation has been undertaken with other government agencies including the AGD, the DFAT, the Department of Defence, and the AFP. Public consultation was not considered necessary or appropriate as the amendments are entirely beneficial to visa applicants, there is no disadvantageous impact on visa applicants’ rights, and no liabilities are imposed. This accords with the consultation requirements in section 17 of the Legislation Act 2003 (the Legislation Act).

Written by Ross Ahmadzai

27 Nov, 2023

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