Commonwealth Numbered Regulations - Explanatory Statements
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MIGRATION AMENDMENT (SUBCLASS 200 AND 201 VISAS) REGULATIONS 2023 (F2023L01550)
EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration Amendment (Subclass 200 and 201 Visas) Regulations
The Migration Act 1958 (the Migration Act) is an Act to regulate, in the national interest, the coming into and presence in Australia, and removal or deportation from Australia, of aliens and certain other persons.
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.
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).
The amending Regulations commence on the day after registration on the Federal Register of Legislation.
Further details of the Regulations are set out in Attachment C.
The amending Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of 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 amending Regulations are a legislative instrument for the purposes of the Legislation Act.
ATTACHMENT A
AUTHORISING PROVISIONS
Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations 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, the following provisions of the Migration Act may also be relevant:
* subsection 31(1), which provides that the regulations may prescribe classes of visas;
* subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023
This legislative instrument 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 legislative instrument
The Migration Amendment (Subclass 200 and 201 Visas) Regulations (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to allow for the power to certify a person as an Afghan Locally Engaged Employee (LEE) for the purposes of an application for certain Humanitarian visas to be delegated by 'relevant Ministers' to relevant Senior Executive Service (SES) level staff within certifying agencies.
In 2012 the Australian Government introduced the Afghan LEE program to offer resettlement in Australia to 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 offers priority processing of humanitarian visa applications to eligible applicants and is implemented through alternative criteria in the Migration Regulations for the Subclass 200 (Refugee) and Subclass 201 (In-country Special Humanitarian) visas. These criteria allow the Minister to specify by instrument one or more classes of persons eligible for resettlement under this program and 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 relevant instrument, the Migration Regulations 1994 - Specification of a Class of Persons - IMMI 12/127 (the Instrument) specifies, inter alia, certain persons who are citizens of Afghanistan, and who have been employed with the Department of Foreign Affairs and Trade (DFAT), the Australian Defence Force (ADF), the Australian Agency for International Development (which is now integrated with DFAT), or the Australian Federal Police (AFP), as LEE in Afghanistan.
The power to certify an individual as Afghan LEE has resided with relevant Ministers since the Afghan LEE Program's inception. The employing agency - DFAT, ADF, or the AFP - assesses an application for certification as an LEE against the criteria for eligibility set out in Instrument. The employing agency submits a recommendation to its relevant agency Minister (the Minister for Foreign Affairs, the Minister for Defence, or the Attorney-General) to make a decision on eligibility for certification.
If the 'relevant Minister' (including the Attorney-General, the Minister for Defence, the Minister for Foreign Affairs, the Minister for Home Affairs, or the Minister for Immigration and Citizenship) then certifies that the person is a member of a class of persons in the Instrument and is at risk of harm for a reason, or reasons, that relate to the person being in that class of persons, then the person will have an expedited processing pathway for the grant of a Subclass 200 or a Subclass 201 visa, subject to meeting other visa requirements. The person can also include members of their family unit in this visa application.
In March 2023, the Government agreed to all recommendations from an independent review of the Afghan LEE Program, including a recommendation that an amendment to the Migration Regulations be made to delegate the power to certify individuals as Afghan LEE to Departmental officers in relevant certifying agencies (recommendation 6). This recommendation was made with the view to streamline the certification process, and support the responses to recommendation 5, which expands eligibility for the Afghan LEE Program and which has already been implemented, and recommendation 7, to finalise all Afghan LEE applications for certification by 31 May 2024. Both the review and the Government response to the review are publicly available (Attachment E and Attachment F, respectively).
The Amendment Regulations therefore amend the Migration Regulations to implement recommendation 6 to allow for the power to certify an applicant for a Subclass 200 visa or a Subclass 201 visa as an Afghan LEE to be delegated by 'relevant Ministers' to relevant SES-level staff within certifying agencies.
The amendments will facilitate the streamlining of the certification process and enable all certifying agencies to finalise Afghan LEE applications for certification by 31 May 2024, as per recommendation 7 of the review.
Human rights implications
The amendments made by the Amendment Regulations are intended to benefit persons who are applying for certification as Afghan LEE. A more streamlined certification process will mean that persons who are certified will be able to be assessed for a Humanitarian visa more quickly.
In most cases the relevant persons are outside of Australia and grant of this visa will enable to them to travel to Australia, enjoy the benefits of permanent residence in Australia and exercise their human rights in Australia. In some instances, the person may have been part of the evacuation from Afghanistan in 2021 and may already be in Australia. In these cases, the grant of this visa may promote rights relating to non-refoulement.
As such, this measure broadly supports human rights.
Conclusion
The Amendment Regulations are compatible with human rights.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
ATTACHMENT C
Details of the Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023
This section provides that the name of the instrument is the Migration Amendment (Subclass 200 and 201 Visas) Regulations 2023.
Section 2 - Commencement
This section provides for the commencement of the instrument.
Subsection 2(1) provides that each provision of the instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
The effect of the table is that the whole of the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 - Authority
This section provides that the instrument is made under the Migration Act 1958 (the Migration Act).
Section 4 - Schedules
This section provides for how the amendments made by the instrument operate.
Schedule 1 - Amendments
Migration Regulations 1994
Item [1] - After subclause 200.211(1B) of Schedule 2
This item inserts a new subclause 200.211(1C) of Schedule 2 to the Migration Regulations 1994 (Migration Regulations), which provides that a relevant Minister may, in writing, delegate the relevant Minister's powers to certify an applicant for a Subclass 200 (Refugee) visa (Subclass 200) for the purposes of paragraph 200.211(1A)(b) to:
* in the case of a relevant Minister other than the Attorney-General:
o the Secretary of the relevant Minister's Department; or
o an SES employee, or acting SES employee, in the relevant Minister's Department; or
* in the case of the Attorney-General:
o the Secretary of the Attorney-General's Department; or
o an SES employee, or acting SES employee in the Attorney-General's Department; or
o the Commissioner of the Australian Federal Police; or
o a Deputy Commissioner of the Australian Federal Police (AFP); or
o a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979).
Clause 200.111 of Schedule 2 to the Migration Regulations defines a "relevant Minister" to be any of the following:
* the Attorney-General;
* the Minister for Defence;
* the Minister for Foreign Affairs;
* the Minister for Home Affairs;
* the Minister for Immigration and Citizenship.
Subclause 200.211(1C) of Schedule 2 to the Migration Regulations enables a relevant Minister (including a minister who administers a department administered by a minister mentioned in clause 200.111) to delegate their powers under paragraph 200.111(1A)(b), to certify that the Subclass 200 visa applicant is a class of persons (as specified by the Minister, in an instrument in writing, made under paragraph 200.111(1A)(a)) and is at risk of harm for a reason, or reasons, that relate to the Subclass 200 visa applicant being in that class of person, to a delegate, who holds a position named in paragraphs 200.111(1C)(a) or (b).
An instrument in writing for the purpose of paragraph 200.211(1A)(a) of Schedule 2 to the Migration Regulations, may, for example, specify, as a characteristic of a class of persons, that a person is or was employed by or works or worked collaboratively with the Australian Government for a specified period, such as a locally engaged employee.
For the purposes of subparagraphs 200.211(1C)(a)(ii) and (b)(ii) of Schedule 2 to the Migration Regulations, "SES employee" and "acting SES employee" has the same meaning as in the Public Service Act 1999 as per section 2B of the Acts Interpretation Act 1901.
For the purposes of subparagraph 200.211(1C)(b)(v) of Schedule 2 to the Migration Regulations, a "senior executive AFP employee" means an AFP employee in respect of whom a declaration under section 25 of the Australian Federal Police Act 1979 is in force, as defined in subsection 4(1) of the Australian Federal Police Act 1979.
The note under subclause 200.211(1C) of Schedule 2 to the Migration Regulations refers the reader to sections 34AA to 34A of the Acts Interpretation Act 1901, which contains the provisions relating to delegations.
Item [2] - After subclause 201.211(1B) of Schedule 2
This item inserts a new subclause 201.211(1C) of Schedule 2 to the Migration Regulations, which provides that a relevant Minister may, in writing, delegate the relevant Minister's powers to certify an applicant for a Subclass 201 (In-country Special Humanitarian) visa (Subclass 201) for the purposes of paragraph 201.211(1A)(b) to:
* in the case of a relevant Minister other than the Attorney-General:
o the Secretary of the relevant Minister's Department; or
o an SES employee, or acting SES employee, in the relevant Minister's Department; or
* in the case of the Attorney-General:
o the Secretary of the Attorney-General's Department; or
o an SES employee, or acting SES employee in the Attorney-General's Department; or
o the Commissioner of the Australian Federal Policy; or
o a Deputy Commissioner of the Australian Federal Police (AFP); or
o a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979).
The new provision operates identically to the provision inserted by item [1], except in that it is a criterion for the Subclass 201 visa rather than for the Subclass 200 visa.
Item [3] - In the appropriate position in Schedule 13
This item inserts clause 12501 of Schedule 13 to the Migration Regulations, which provides for the items in Schedule 1 of the amending Regulations to apply in relation to Subclass 200 (Refugee) visa and Subclass 201 (In-country Special Humanitarian) visa applications which:
* have been made, but not finally determined, before the commencement of the amending Regulations, or
* are made on or after the commencement of the amending Regulations.