Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 [F2015L01961]-Response required [2016] AUSStaCSDLM 18 (3 February 2016)

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Instrument	Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 [F2015L01961]
Purpose	Amends the Migration Regulations 1958 to introduce a range of measures to support the new provisions introduced by the Migration Amendment (Charging for a Migration Outcome) Act 2015
Last day to disallow	11 May 2016
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(b)

Retrospective effect

The regulation makes various amendments to the Migration Regulations 1994 to support changes made to the Migration Act 1958 by the Migration Amendment (Charging for a Migration Outcome) Act 2015. The ES states that the latter Act makes it unlawful for a person to ask for, receive, offer or provide a benefit in return for a migration outcome ('payment for visas' conduct) in relation to certain skilled visa programs.

Item 52 of Schedule 1 to the regulation inserts a new item into Schedule 13 to the Migration Regulations 1958 dealing with the application of the amendments made by the regulation. New paragraph 5101(4)(a) provides that the amendments made by various items of Schedule 1 to this regulation apply to an application for a visa made, but not finally determined, before the commencement of those items (i.e. 14 December 2015).

The committee notes that, although the instrument is not strictly retrospective, it prescribes rules for the future based on antecedent facts (that is, the existence of an earlier visa application). As a consequence, it appears that a person whose application for a visa was made on or before 14 December 2015 is now subject to criteria for the grant of the visa that did not apply at the time of their application.

The committee's usual approach in cases such as this is to regard the instrument as being retrospective in effect and to asses such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)). The committee notes that the ES for the regulation does not address this issue.

The committee requests the advice of the minister in relation to this matter.