EXPLANATORY STATEMENT
Issued by the Minister for Population, Cities and Urban Infrastructure
for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Migration Act 1958
Migration Amendment (COVID-19 Concessions) Regulations 2020
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 can be made pursuant to, or for the purposes of, the provisions listed at Attachment A.
The Migration Amendment (COVID-19 Concessions) Regulations 2020 (the COVID-19 Concessions Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who have been disadvantaged by the consequences of the COVID-19 pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn.
Schedule 1 to the COVID-19 Concessions Regulations amends the Migration Regulations in six Parts.
Part 1 – COVID-19 concession period inserts concession period as a defined term in the Migration Regulations. The initial concession period begins on 1 February 2020 and continues until a date determined by the Minister in a legislative instrument. Additional concession periods can be specified as required, to begin immediately after the end of the initial concession period or at a later date. The duration of a concession period may vary for different purposes.
Part 2 – Subclass 887 (Skilled – Regional) visas amends the criteria for the Subclass 887 visa to provide concessions in relation to application requirements, and in relation to visa criteria requiring specified periods of residence and full-time work in regional Australia. The Subclass 887 visa is a permanent visa and the amendments assist holders of qualifying provisional visas or related bridging visas, who are on a pathway to the permanent visa.
Part 3 – Subclass 888 (Business Innovation and Investment (Permanent)) visas amends visa criteria to provide concessions to visa applicants who are on a pathway from the Subclass 188 (Business Innovation and Investment (Provisional)) visa to the Subclass 888 (Business Innovation and Investment (Permanent)) visa. The amendments provide concessions in relation to application requirements, and in relation to visa criteria requiring specified periods of residence, and specified levels of business and investment activity. The amendments also permit Subclass 188 visa holders to obtain another Subclass 188 visa if they need more time to establish a qualifying business in Australia.
Part 4 – Subclass 790 (Safe Haven Enterprise) visas provides concessions to holders, and certain former holders, of a Subclass 790 (Safe Haven Enterprise) visa (SHEV) in relation to eligibility to apply for other visas. SHEV holders, and certain former holders, may be permitted to apply for other specified visas if, while the holder of a SHEV, they are employed (and not in receipt of Special Benefit payments), or study full-time, in a specified regional area for a total period of 42 months. The concession is that periods may be counted toward the 42 month requirement if, during a concession period, the applicant was unemployed, or was receiving Special Benefit payments, or was employed outside a specified regional area in a specified essential service.
Part 5 – Subclass 485 (Temporary Graduate) visas amends the application requirements and visa criteria for the Subclass 485 (Temporary Graduate) visa, to assist international students, by allowing applications for this post-study visa to be made from outside Australia during a concession period. The amendments also allow the visa to be granted to an applicant who is outside Australia. Prior to this amendment, most applicants were required to be in Australia to apply for the visa and to be granted the visa. The amendments provide former international students with the opportunity to obtain a visa to return to Australia when travel restrictions are lifted. The visa period will run from the date of entry to Australia.
Part 6 – Application and transitional provisions amends Schedule 13 to the Migration Regulations to provide for the application of the amendments and transitional arrangements.
The matters dealt with in the COVID-19 Concessions 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 at Attachment A. These include, for example, subsection 31(3), which provides that the 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 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 COVID-19 Concessions Regulations are compatible with human rights. A copy of the Statement is at Attachment B.
Details of the COVID-19 Concessions Regulations are set out in Attachment C.
The Department of Home Affairs has consulted with the Department of Prime Minister and Cabinet, the Department of Education, Skills and Employment, Austrade, the Department of Finance, Treasury, the Department of Social Services, and the Global Reputation Taskforce of the Council for International Education. No other consultation was undertaken for the purposes of the COVID-19 Concessions Regulations as it was not considered appropriate or reasonably practicable. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act).
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the COVID-19 Concessions Regulations, and has advised that a Regulation Impact Statement is not required. The OBPR reference numbers are:
Part 1 – Not applicable;
Part 2 – 26488;
Part 3 – 42531;
Part 4 – 42802;
Part 5 – 42535;
Part 6 – Not applicable.
The COVID-19 Concessions Regulations are a legislative instrument for the purposes of the Legislation Act.
The COVID-19 Concessions Regulations commence on 19 September 2020.
