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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Migration Amendment (Common Sense for All Visas) Bill 2021
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Julian Hill MP
Migration Amendment (Common Sense for All Visas) Bill 2021
OUTLINE
This Bill seeks to amend the Migration Act 1958 to enable, for a specified period,
applicants for any visa to be granted the visa while either onshore or offshore.
Applicants for various visa subclasses are required by the Migration Regulations 1994 to
be either outside, or inside, Australia at the time of visa grant. Ordinarily, applicants who
are in Australia on temporary visas can leave and return to the country relatively easily in
order to meet this requirement. Similarly, applicants who may be working or travelling
overseas on a temporary basis can return to Australia to be granted a visa, should they be
required to do so.
Disruptions to international air travel and border restrictions implemented as a result of
COVID-19 have however created considerable difficulties for affected individuals. The vast
majority of people in Australia have been stranded, unable to leave Australia since the
onset of the pandemic, and are unable to either depart the country they currently reside in,
or return to it, in order to have an Australian visa granted.
With limitations on airline passenger numbers, and caps on international arrival numbers
to Australia, tickets are extremely expensive and flights unreliable. Inbound travellers must
quarantine at a designated facility for 14 days on arrival, usually at their own expense.
With on-arrival quarantine now a standard component of travel throughout the world, and
most countries experiencing significantly higher levels of COVID-19 infection than
Australia, meeting this visa requirement is an extraordinarily risky, expensive and time-
consuming endeavour.
In a global pandemic, it is nonsensical to force anyone to take unnecessary travel for the
purpose granting a visa. Overwhelmingly, it is the partners, parents and close family
members of Australian citizens or permanent residents most impacted by these rules.
People applying for over 30 visa subclasses are affected, including skilled workers and
others with close connections to the Australian community.
Almost 40,000 Australians wishing to return home are currently stranded overseas, and
subject to strict limitations on arrivals and quarantine capacity. In this context, the
requirement for visa applicants to depart or return to Australia - and therefore use limited
places on inbound flights, within the arrivals cap and in quarantine in lieu of stranded
citizens - should be temporarily suspended. This would lower the significant public health
risk associated with the movement of people between Australia and other countries, where
COVID-19 may be prevalent.
The Bill will alleviate significant stress for the families and individuals concerned. A
solution to this impasse is critical for those who for reasons of health concerns, family and
work commitments, or financial impost, are unable to submit to the risks and costs
involved in overseas travel in these circumstances.
The Bill enables the grant of visas onshore or offshore on a temporary basis, from the day
after the Royal Assent is received until 31 December 2021, after which time the current
processing requirements would resume.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Clause 2 provides for the commencement of the Bill on the day after the Act
receives the Royal Assent.
Clause 3: Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in
the applicable terms in the Schedule. Any other item in a Schedule to the Act has
effect according to its terms.
Schedule 1 - Amendments
Migration Act 1958
Item 1 At the end of section 40
4. Item 1 amends section 40 of the Act to provide for the addition of new subsections
(4), (5), (6) and (7).
5. Section 40 of the Act outlines the circumstances under which visas, or visas of a
certain class, may be granted.
6. Subsection (4) includes provision for a visa or a visa of a specified class to be
granted to a person whether or not they are in Australia, where the Act or
regulations requires that they be in Australia at the time of grant, for those visas
granted on or after the commencement of this subsection, and on or before 31
December 2021.
7. Subsection (5) includes provision for a visa or a visa of a specified class to be
granted to a person whether or not they are outside Australia, where the Act or
regulations requires that they be outside Australia at the time of grant, for those
visas granted on or after the commencement of this subsection, and on or before 31
December 2021, and where the person is not in immigration clearance at the time
of grant.
8. Subsection (6) provides that for the purposes of subsections (4) or (5), it does not
matter whether the application for the visa was made before, on or after the
commencement of this subsection.
9. Subsection (7) outlines that subsection (4) does not affect any requirement that the
person not be in immigration clearance at the time of grant.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Common Sense for All Visas) Bill 2021
This Bill 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.
Overview of the Bill
This Bill seeks to amend the Migration Act 1958 to enable, for a specified period,
applicants for a visa to be granted the visa while either onshore or offshore.
The Bill will temporarily dispense with the requirement to be present either inside or
outside Australia at the time of grant in order to be granted a visa, in recognition of the
significant difficulties caused by disruptions to international air travel and COVID-19
related border restrictions.
In enabling the grant of visas either onshore or offshore, the Bill will ensure the availability
of additional places on inbound flights, and in the international arrivals cap and designated
quarantine facilities, for Australian citizens currently stranded overseas and wishing to
return home.
Human rights implications
The Bill engages the following rights as provided for in the International Covenant on Civil
and Political Rights (ICCPR):
The right to freedom of movement, including the right to enter one's own country, as
contained in Article 12; and
The rights of the family, as the natural and fundamental group unit of society, to
protection by the State, as contained in Article 23.
The Bill is compatible with the above rights.
The Bill will free up additional places on inbound international flights, in the arrivals cap,
and in quarantine, to allow more Australian citizens to return home from overseas sooner.
The Bill will enable people who have met all other requirements to be granted a visa
regardless of their location, rather than forcing unnecessary international travel in order to
be granted the visa. In many cases, this will prevent families from being separated for
indefinite periods of time. This is particularly important for applicants who are pregnant,
who have newborn children or whose family responsibilities otherwise preclude their
absence from their family unit for several weeks or longer.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Julian Hill MP