Migration Amendment (Temporary Activity Visas) Regulation 2016 [F2016L01743]-Response required [2016] AUSStaCSDLM 362 (30 November 2016)

Instrument	Migration Amendment (Temporary Activity Visas) Regulation 2016 [F2016L01743]
Purpose	Amends the Migration Regulations 1994 in relation to the temporary activity visas framework and the visa application charge for the Subclass 888 (Business Innovation and Investment (Permanent)) visa
Last day to disallow	20 March 2017
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(b)

Retrospective in effect

The Migration Amendment (Temporary Activity Visas) Regulation 2016 [F2016L01743] (the regulation) amends the Migration Regulations 1994 to repeal five classes of temporary activity visas,^[1] and create two new visas to replace them.^[2]

Part 6 of Schedule 1 of the regulation deals with the application of the amendments made by the regulation. New paragraph 6002(1)(d) provides that the amendments made by Parts 5 and 6 of Schedule 1 to the regulation apply to a nomination made in an application for a visa made, but not yet finally determined, before the commencement of the regulation (19 November 2016).

The ES explains that an effect of this paragraph is that:

...no new nominations for applicants for Subclasses 401, 402 (Occupational Trainee stream) and 420 visas can be made, including by legacy sponsors and including for applications made before 19 November 2016, as those provisions have been repealed.

The ES also notes that an application for these visas cannot validly be made without

a nomination in place at the time of making the application, and therefore the amendments will not affect the majority of visa applicants. However, notwithstanding this, the ES acknowledges that there may be cases where an applicant’s nomination could expire between the visa application being made and a visa decision being made, or where an applicant may change their sponsor and wish to provide a new nomination. The ES makes clear that in those cases, the applicant will not be able

to provide a new nomination for the purposes of a visa grant. In this respect,

the ES states:

Given the small number impacted, it would have been inefficient to continue to support the operation of the repealed nomination provisions after 19 November 2016 in a context where all paper-based applications are being replaced by online applications and where the new visa scheme for Subclass 408 no longer requires nominations. However, the Department will consider alternative arrangements for applicants who are adversely affected.

The committee is concerned that while the ES acknowledges that some applicants who applied for the repealed visa classes before 19 November 2016 will be adversely affected, it only goes so far as to say that the Department will ‘consider alternative arrangements’ for these applicants. Without knowing what these alternative arrangements are, it is difficult for the committee to assess whether the regulation will have a retrospective effect that will unduly trespasses on personal rights and liberties (scrutiny principle 23(3)(b)).

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

---

[1] Subclass 401 (Temporary Work (Long Stay Activity)) visa; Subclass 402 (Training and Research) visa; Subclass 416 (Special Program) visa; Subclass 420 (Temporary Work (Entertainment)) visa; and Subclass 488 (Superyacht Crew) visa.

[2] Subclass 407 (Training) visa and Subclass 408 (Temporary Activity) visa.