Commonwealth Numbered Regulations - Explanatory Statements
[Index] [Search] [Download] [Related Items] [Help]
MIGRATION AMENDMENT (UKRAINE) REGULATIONS 2022 (F2022L00337)
EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Act 1958
Migration Amendment (Ukraine) Regulations 2022
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure 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.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The Migration Amendment (Ukraine) Regulations 2022 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to extend certain temporary visas by six months from the date they would otherwise have ceased for Ukrainian passport holders who were in Australia on 23 February 2022 with a visa in effect on that date and whose visa would otherwise cease before 1 July 2022. This is in accordance with the Government announcement made on 23 February 2022 and responds to the deteriorating security situation in Ukraine. The extensions are also provided for accompanying family members on the visa, regardless of their citizenship.
In particular, the visas that have been identified as being held by the relevant cohort and that require extending are:
* Subclass 400 (Temporary Work (Short Stay Specialist)) visa.
* Subclass 408 (Temporary Activity) visa.
* Subclass 457 (Temporary Work (Skilled)) visa.
* Subclass 482 (Temporary Skill Shortage) visa.
* Subclass 485 (Temporary Graduate) visa.
* Subclass 500 (Student) visa.
* Subclass 600 (Visitor) visa.
The amendments commence retrospectively on 22 February 2022 to ensure that any visas that cease between 23 February 2022 and these Regulations being made on
17 March 2022 are retrospectively extended, despite their earlier cessation. Retrospective commencement is beneficial to affected visa holders and does not disadvantage any person. Retrospective commencement is therefore consistent with section 12 of the Legislation Act 2003 (the Legislation Act).
The matters dealt with in the 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.
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 respond quickly to emerging situations such as the COVID-19 pandemic.
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. The Statement is at Attachment B.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments. No Regulation Impact Statement is required. The OBPR consultation reference is: 22-01871
No consultation was undertaken in relation to the amendments as this is being implemented as an urgent response to the deteriorating security situation in Ukraine and is beneficial to affected visa holders. Consultation was not considered reasonably practicable or appropriate. This accords with subsection 17(1) of the Legislation Act.
The Department of Home Affairs will contact affected visa holders in Australia to inform them of these measures.
Further details of the Regulations are set out in the Attachment C.
The 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, 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.
In addition, the following provisions of the Migration Act may also be relevant:
* subsection 29(1), which provides that the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia;
* subsection 29(2), which provides that, without limiting subsection 29(1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely; and
* subsection 30(2), which provides that a visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain during a specified period, or until a specified event happens, or while the holder has a specified status.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Ukraine) Regulations 2022
The Migration Amendment (Ukraine) Regulations 2022 (the Amendment Regulations) are 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
The Amendment Regulations amend the Migration Regulations 1994 (the Migration Regulations) as follows.
As part of Australia's response to the deteriorating security situation in Ukraine, on 23 February 2022, the Prime Minister, the Hon Scott Morrison MP announced that automatic visa extensions for six months will be provided for Ukrainian nationals in Australia who have visas expiring up to 30 June 2022.
The Migration Amendment (Ukraine) Regulations 2022 (the Amendment Regulations) amend the Migration Regulations 1994 to extend certain temporary visas by six months from the date they would otherwise have ceased for Ukrainian passport holders who were in Australia on 23 February 2022 with a visa in effect on that date and whose visa would otherwise cease before 1 July 2022.
The visas that have been identified as being held by the relevant cohort and that require extending are:
• Subclass 400 (Temporary Work (Short Stay Specialist)) visa
• Subclass 408 (Temporary Activity) visa
• Subclass 457 (Temporary Work (Skilled)) visa
• Subclass 482 (Temporary Skill Shortage) visa
• Subclass 485 (Temporary Graduate) visa
• Subclass 500 (Student) visa
• Subclass 600 (Visitor) visa.
The above temporary visas, with the exception of the Subclass 600 (Visitor) visa, all have 'secondary criteria' which means they can be granted to members of the family unit of the primary visa holder, without them having to meet the primary criteria for the visa, such as criteria relating to the person being a student or being sponsored for employment. For these visas, so long as one member of the family unit holding the visa meets the threshold requirements (that is, that they are a Ukrainian passport holder who was in Australia on 23 February 2022 with a visa in effect on that date and whose visa would otherwise cease before 1 July 2022), all other visa holders granted the visa as part of the same family unit are also provided the extension, regardless of whether they meet these threshold requirements themselves or whether they are the primary or a secondary visa holder.
There are no secondary criteria for the Subclass 600 (Visitor) visa. All applicants must meet the primary criteria. This means that all visa holders must meet the threshold requirements to be eligible for the extension. Family members travelling with an extended visa holder who do not meet the threshold requirements themselves may apply for another visa, such as a Subclass 600 (Visitor) visa, to remain in Australia.
The amendments commence retrospectively on 22 February 2022 to ensure that any visas that ceased between 23 February 2022 and these regulations being made on 17 March 2022 are retrospectively extended by six months, despite their earlier cessation. Retrospective commencement is entirely beneficial to affected visa holders and does not disadvantage any person.
These measures give effect to the Prime Minister's announcement made on 23 February 2022 and will ensure Ukrainian passport holders on these temporary visas in Australia are able to stay lawfully in Australia for an additional six months and do not need to return to a conflict situation in Ukraine at this time.
Human Rights Implications
The measures in the Amendment Regulations broadly support the human rights of the affected visa holders, as they will allow those visa holders, and members of their family unit where applicable, to remain in Australia for longer, primarily so they do not have to return to the conflict situation in Ukraine at this time. Depending on the type of visa held, this may allow those visa holders further time in Australia to work, study or spend time with family, which broadly supports rights relating to work and education in the International Covenant on Economic, Social and Cultural Rights, and rights relating to families and children in the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child.
The measures in the Amendment Regulations may also engage rights to equality and non-discrimination, particularly as expressed in Article 26 of the ICCPR.
These visa extensions are being provided to Ukrainian passport holders (and their family unit members where applicable, regardless of passport held) and not to visa holders who are not Ukrainian passport holders. As such, the Amendment Regulations treat Ukrainian passport holders differently to holders of other passports. However, this differential treatment will not amount to prohibited discrimination on grounds of nationality, as it is necessary, reasonable and proportionate to achieving a legitimate objective. That is because the Amendment Regulations address the public, social and international concern with the escalating conflict in Ukraine, by providing certain Ukrainian visa holders in Australia whose visas would expire in the near future with the benefit of an extension of their stay in Australia. The Amendment Regulations do not impose any new restrictions or have adverse impacts on visa applicants or visa holders that are not part of the affected cohort.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because the amendments will not amount to prohibited discrimination on grounds of nationality, as they are necessary, reasonable and proportionate to achieving a legitimate objective.
The Hon Alex Hawke MP,
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
ATTACHMENT C
Details of the Migration Amendment (Ukraine) Regulations 2022
Section 1 - Name
This section provides that the name of the instrument is the Migration Amendment (Ukraine) Regulations 2022.
Section 2 - Commencement
This section provides that the whole of the instrument commences retrospectively on
22 February 2022.
The amendments commence retrospectively to ensure that any visas that cease between 23 February 2022 and these Regulations being made on 17 March 2022 are retrospectively extended, despite their earlier cessation. Retrospective commencement is beneficial to affected visa holders and does not disadvantage any person. Retrospective commencement is therefore consistent with section 12 of the Legislation Act 2003 (the Legislation Act).
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 Regulations operate.
Schedule 1 - Amendments
Migration Regulations 1994
Item [1] - After regulation 2.05
This item inserts new regulations 2.05A and 2.05B in Part 2 of the Migration Regulations (the Regulations).
New regulation 2.05A - Subclasses 400, 408, 457, 482, 485 and 500
The effect of new regulation 2.05A is to extend the listed visas by six months from their 'original end date' in the circumstances set out in subregulations (2)-(4). ('Original end date' is defined and explained further below).
The effect of subregulation (1) is to provide that the relevant visa is a temporary visa permitting the holder to travel to, enter and remain in Australia until 6 months after the original end date of the visa.
Eligibility for the extension
Subregulations (2) to (4) set out which visas are eligible for extension.
The effect of subregulation (2) is that the extension applies to Ukrainian passport holders who were in Australia on 23 February 2022 (the date of the Government announcement) holding one of the listed visas in effect on that date and where the visa would otherwise cease before 1 July 2022. This is in accordance with the Government announcement on 23 February 2022. The extension is provided regardless of whether the person met the primary criteria (main visa holder) or secondary criteria (family member) for the visa. The person must have held a valid passport issued by Ukraine at the time the relevant visa was granted.
The effect of subregulation (3) is that the extension applies to visa holders who met the secondary criteria (family members) on or before 23 February 2022 but who do not meet the threshold requirement in subregulation (2) (for example, because they are not a Ukrainian passport holder or were not in Australia on 23 February 2022). This ensures that relevant family members of the person who met the threshold requirement in subregulation (2) also have their visas extended.
The effect of subregulation (4) is that the extension applies to a visa holder who met the primary criteria (the main visa holder) but who does not meet the threshold requirement in subregulation (2) in their own right (for example, because they are not a Ukrainian passport holder or were not in Australia on 23 February 2022), so long as a family member who met the secondary criteria does meet the threshold requirements in subregulation (2). This ensures that a main visa holder, who does not meet the threshold requirement in their own right, has their visa extended if a family member who is a secondary visa holder meets the threshold requirement in subregulation (2).
The effect is that so long as one member of the family unit holding the visa meets the threshold requirement in subregulation (2), all other visa holders granted the visa as part of the same family unit are also provided the extension, regardless of whether the person who met the threshold requirement in subregulation (2) met the primary or secondary criteria for the visa.
The effect ensures that persons granted visas as a family group are all provided the extension if one person in the group meets the threshold requirements.
The visas that have been identified as being held by the relevant cohort and that require extending, and are covered by regulation 2.05A, are:
Subclass 400 (Temporary Work (Short Stay Specialist).
Subclass 408 (Temporary Activity).
Subclass 457 (Temporary Work (Skilled).
Subclass 482 (Temporary Skill Shortage).
Subclass 485 (Temporary Graduate).
Subclass 500 (Student).
Original end date
Subregulation (5) provides what the original end date is for the relevant visas.
Subclasses 457, 482, 485 and 500 are provided for in table item 1 as they all provide a single period in which a person may travel to, enter and remain in Australia. This is extended by six months.
Subclasses 400 and 408 are provided for separately as they each provide separate periods in which a person may enter Australia and a period in which they may remain in Australia. The remaining period is extended by six months. None of the affected cohort is outside Australia for these visas.
New regulation 2.05B - Subclass 600 (Visitor)
New regulation 2.05B deals with Subclass 600 separately from the subclasses above as this Subclass has multiple maximum stay periods within the validity period (for example, 3 months stay at a time, during a 12 month total validity period).
The effect of subregulations (1) and (3) together is to extend the stay period in Australia by six months (for example, 3 + 6 months stay period). If the validity period is ending earlier than this, then the validity period is also extended to align with this new end date. If the validity period is ending later than this, then the validity period remains as it was. The effect is to provide an additional 6 months stay period.
The original stay period is referred to as the "original remain period".
The end of the original stay period is referred to as the "original remain end date".
The end of the original validity period is referred to as "original validity end date".
These are defined in subregulation (3).
Eligibility for the extension
Subregulation (2) sets out which visas are eligible for extension.
The effect of subregulation (2) is that the extension applies to Ukrainian passport holders who were in Australia on 23 February 2022 (the date of the Government announcement) holding a Subclass 600 visa in effect on that date and where the visa would otherwise cease before 1 July 2022. This is in accordance with the Government announcement on 23 February 2022. The person must have held a valid passport issued by Ukraine at the time the Subclass 600 visa was granted.
There are no secondary criteria for the Subclass 600 visa. All applicants must meet the primary criteria. This means that all visa holders must come within subregulation (2) to be eligible for the extension. Family members travelling with an extended visa holder who do not come within subregulation (2) themselves may apply for another visa, such as Subclass 600 (Visitor) visa, to remain in Australia.
Item [2] - Paragraph 485.514(2)(d) of Schedule 2
This item inserts a reference to regulation 2.05A after the word "disregarding" in paragraph 485.514(2)(d) of Schedule 2 to the Migration Regulations.
Clause 485.514 provides for certain Subclass 485 visas that were held by persons affected by COVID-19 travel restrictions and were outside Australia between 1 February 2020 and
14 December 2021 to be extended to 30 September 2022.
Paragraph 485.514(2)(d) defines the end day, the day from which the extension applies, as the last day on which the person could travel to, enter and remain in Australia under the visa, disregarding the extension. That is, the day until which the visa was originally granted. The purpose of this amendment is to ensure that if any Subclass 485 visa holder is otherwise eligible for an extension under both clause 485.514 and regulation 2.05A, the extension under regulation 2.05A is also disregarded in calculating the end day in respect of the person for the purposes of clause 485.514.