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LIN 19/063 Other as made
This instrument repeals Migration (LIN 18/191: Substantive Visa Classes) Instrument 2018 and operates to specify all visas that are both substantive and temporary as a class of substantive visa for paragraphs 82(2AA)(a) and (b) of the Migration Act 1958.
Administered by: Home Affairs
Registered 09 Sep 2019
Tabling HistoryDate
Tabled HR11-Sep-2019
Tabled Senate12-Sep-2019

EXPLANATORY STATEMENT

Migration Act 1958

Migration (LIN 19/063: Class of Substantive Visa) Instrument 2019

(Paragraphs 82(2AA)(a) and (b) of the Act)

1.             The instrument, LIN 19/063, is made under paragraphs 82(2AA)(a) and (b) of the Migration Act 1958 (the Act).

2.             The instrument repeals LIN 18/191 made under paragraphs 82(2AA)(a) and (b) of the Act and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

3.             Subsection 82(2) of the Act provides that a substantive visa as defined in subsection 5(1) of the Act held by a non-citizen ceases to be in effect if another substantive visa granted to the non-citizen comes into effect. Paragraph 82(2AA)(a) of the Act provides that, despite subsection 82(2) of the Act, a maritime crew visa (MCV) held by a non-citizen under section 38D of the Act does not cease to be in effect if a substantive visa, in a class specified by the Minister, granted to the non-citizen, comes into effect.

4.             Similarly, paragraph 82(2AA)(b) of the Act provides that, despite subsection 82(2) of the Act,  a substantive visa, in a class specified by the Minister, held by a non-citizen, does not cease to be in effect if an MCV granted to the non-citizen comes into effect. The result of these provisions is that the class of substantive visas specified by the Minister in the instrument can be held concurrently with an MCV.

5.             The instrument operates to specify all substantive temporary visas as defined in the instrument as a class of substantive visa for the purposes of paragraphs 82(2AA)(a) and (b) of the Act.

6.             The purpose of the instrument is to remove the reference to special purpose visas (SPVs) granted to a person on the grounds that they are a crew member, or a spouse, de-facto partner or dependant of a crew member, of a non-military ship. These grounds have no longer been available for the granting of SPVs since 1 January 2008. The reference is therefore redundant.

7.             The change was consulted internally but not externally. This is because the removal of the redundant reference is of minor and machinery nature, and will have no impact on any individual as no one may concurrently hold an SPV and an MCV.

8.             The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 24577).

9.             Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.

10.         The instrument commences on the day after registration on the Federal Register of Legislation.