Migration Amendment (Temporary Activity Visas) Regulation 2016 [F2016L01743]-Further response required [2017] AUSStaCSDLM 25 (8 February 2017)

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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)
Previously reported in	Delegated legislation monitor 10 of 2016

Retrospective in effect

The committee commented as follows:

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including by legacy sponsors and including for applications made before 19 November 2016, as those provisions have been repealed.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Given the small number impacted, it would have been inefficient to continue to support the operation of the repealed nomination provisions after 19 November 2016 in a context where all paper-based applications are being replaced by online applications and where the new visa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.

Minister's response

The Minister for Immigration and Border Protection advised:

As outlined in the Explanatory Statement, my Department expects that there may be a small number of visa applicants who will be adversely impacted by the legislative changes. There is a possibility that some applicants will no longer be eligible for the repealed visa e.g. because of the expiry of a nomination which cannot be renewed) and who will also not be eligible to apply for, or be granted, the equivalent new visa. Alternative arrangements for any applicants who are adversely affected will be considered on a case by case basis, depending on the specific circumstances.

I have a range of powers to intervene to remedy situations of unfairness. For example, section 351 of the Migration Act 1958 (the Act) would allow me to grant one of the temporary activity visas to a non-citizen in a situation where the Administrative Appeals Tribunal had affirmed a refusal decision in relation to a repealed visa and I think it is in the public interest to do so. My practice is to consider intervention in circumstances not anticipated by relevant legislation; where there are clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results.

Committee response

The committee thanks the minister for his response.

The committee's request for advice in relation to this instrument arose from concerns that the regulation may have a retrospective effect that will unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)), as the ES provided only that the Department of Immigration and Border Protection would 'consider alternative arrangements' for those applicants who applied for a repealed visa class before 19 November 2016 and were adversely affected by the changes made by the regulation.

The committee notes the minister's advice that where the application of relevant legislation leads to unfair or unreasonable results the minister's practice is to consider intervention to remedy the situation.

The committee also notes the minister's advice that there may be a small number of visa applicants who will be adversely impacted by this regulation and that alternative arrangements for such applicants will be considered on a case by case basis, depending on the specific circumstances.

However, the committee remains concerned that the minister's response does not provide details of what specific 'alternative arrangements' will apply to applicants that are adversely affected by the regulation, nor an assurance that the minister will intervene to remedy such a situation should it arise.

The committee reiterates its previous comments that without knowledge of what the specific 'alternative arrangements' are, it is difficult for the committee to assess whether the regulation will have a retrospective effect that will unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)).

The committee requests the further advice of the minister in relation to the above.

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[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.