Migration (Designated Migration Law—Visa Condition 8208) Determination (LIN 24/009) 2024
  • Subsection 495A(1) of the Act provides that the Minister may arrange for the use, under the Minister’s control, of computer programs for any purpose for which, under the ‘designated migration law’, the Minister may or must make a decision; or exercise any power, or comply with any obligation; or do anything else related to making a decision, exercising a power, or complying with an obligation. The term ‘designated migration law’ is defined in subsection 495A(3) of the Act. In particular, paragraph 495A(3)(b) of the Act provides that the Minister may determine, by legislative instrument, any provision of the Act or the Migration Regulations 1994 (the Migration Regulations) to be part of the ‘designated migration law’.
  • The Instrument operates to determine visa condition 8208 (condition 8208) in Schedule 8 to the Migration Regulations to be part of the designated migration law for the purposes of section 495A of the Act.
  • The Migration Amendment (Postgraduate Research in Critical Technology—Student Visa Conditions) Regulations 2022 (the PACT Student Visa Condition Regulations) amended the Migration Regulations on 1 July 2022, to insert condition 8208 which applies to Subclass 500 (Student) visas (student visas) as part of a legislative framework to safeguard against the risk of unwanted transfer of Australia’s critical technology in certain temporary and permanent visa programs. Condition 8208 is an integral part of the new legislative framework established on 1 July 2022 by the Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 (the PACT Regulations).
  • Condition 8208 requires student visa holders who intend to undertake critical technology related study in a postgraduate research course to obtain the approval of the Minister (or the Minister’s delegate) to do so. Where an affected student visa holder seeks the Minister’s approval to undertake critical technology related study, the Minister’s decision under paragraph 8208(1)(b) would follow an assessment of the risk of an unwanted transfer of critical technology by the visa holder.
  • The purpose of this Instrument is to allow for the use of computerised decision-making in certain circumstances. Specifically, by determining that condition 8208 is part of the designated migration law, this allows the Minister to arrange for the use of computer programs to make a decision, exercise a power or comply with an obligation, or do anything else relating to a decision, power or obligation, in relation to critical technology related study under condition 8208.

Consultation

  • Subsection 17(1) of the Legislation Act requires that the rule-maker must be satisfied that consultation has been undertaken that is considered by the rule-maker to be appropriate and reasonably practicable to undertake.
  • The PACT Regulations, the related legislative instrument Migration (Critical Technology⸺Kinds of Technology) Specification (LIN 24/010) 2024, and the visa screening framework that these legislative instruments establishhave been the subject of extensive consultation. Within government, this included the Department of the Prime Minister and Cabinet, the Department of Industry, Science and Resources (including the Critical Technologies Hub), the Department of Education, Skills and Employment, the Commonwealth Scientific and Industrial Research Organisation (CSIRO), the Department of Foreign Affairs and Trade, and other relevant agencies. The Department of Home Affairs also consulted representatives of the higher education sector, including through the Universities Foreign Interference Taskforce (UFIT) Critical Technology Working Group, and industry peak bodies through a series of roundtables and bilateral engagements. The outcomes of this consultation process informed the approach to finalising the list of technologies specified in LIN 24/010.

Written by Ross Ahmadzai

20 Feb, 2024

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