Migration (Appropriate Regional Authority) Instrument (LIN20/236) 2020

This instrument, Migration (Appropriate Regional Authority) Instrument (LIN20/236) 2020 (LIN 20/236), formally names specific State and Territory departments and authorities as the “appropriate regional authority” for a defined set of visa classes and State or Territory combinations. The instrument is made under the definition of “appropriate regional authority” in regulation 1.03 of the Migration Regulations 1994, as recorded in clause 3. It commences the day after it is registered on the Federal Register of Legislation, per clause 2, and is cited as LIN 20/236 under clause 1.

Mechanically, the instrument does three things. First, it defines that in this instrument “Regulations” means the Migration Regulations 1994, see clause 4. Second, it repeals the previous legislative instrument titled Appropriate Regional Authority (IMMI 10/041) (F2010L01487), in accordance with subsection 33(3) of the Acts Interpretation Act 1901, see clause 5. Third, and substantively, clause 6 specifies which Departments or authorities of the States and Territories are the appropriate regional authorities in relation to applications for a discrete list of visa classes. The visa classes listed in clause 6(1) are: Business Skills (Migrant) (Class AD) where the application was made prior to 1 March 2003; Business Skills - Established Business (Residence) (Class BH) where the application was made prior to 1 July 2013; Business Skills (Residence) (Class DF); Business Skills (Provisional) (Class UR); and Investor Retirement (Class UY).

The instrument therefore functions as the legislative instrument contemplated by reg 1.03: it identifies, by State and Territory, the bodies that are to be treated as the appropriate regional authority for the specified visa classes. The instrument does not itself set out procedural powers, duties, criteria for assessment, or decision-making rules; those remain in the Migration Regulations and other statutory or administrative instruments. The immediate, concrete legal effect of LIN 20/236 is to replace the earlier IMMI 10/041 instrument and to establish the list of State and Territory departments named in clause 6 as the relevant authorities for the indicated visa classes.

Three core legal concepts are central to the instrument: (1) designation of “appropriate regional authority”, (2) specification by visa class and application-date limitation, and (3) identification of the particular State and Territory departments named in the table in clause 6 as the enumerated authorities.

Designation of “appropriate regional authority”. Clause 3 states the instrument is made under the definition of appropriate regional authority in regulation 1.03 of the Regulations. Clause 4 includes a Note that reproduces the operative meaning found in reg 1.03: an appropriate regional authority, in relation to a State or Territory and applications for visas of a particular class, means a Department or authority of that State or Territory that is specified in a legislative instrument made by the Minister in relation to the grant of visas of that class. In other words, reg 1.03 contemplates that a Ministerial legislative instrument will list the Department(s) or authority(ies) to play that role for specific classes and States. This instrument is that legislative instrument for the listed classes and States.

Specification by visa class and application-date limitation. Clause 6(1) ties the designation to concrete visa classes. Two of the classes are subject to an application-date cut-off: Class AD applies only where an application was made prior to 1 March 2003; Class BH applies only where an application was made prior to 1 July 2013. The remaining classes listed (DF, UR, UY) are not qualified by application date within the instrument text. The presence of these temporal qualifications means that the instrument does not create an open-ended authority for those classes beyond the specified application-date conditions.

Identification of specific State and Territory departments. Clause 6(1) is followed by a table that lists, in Column 1, each State or Territory and, in Column 2, the Department or authority specified as the appropriate regional authority. The named bodies are: New South Wales Treasury; Department of Jobs, Precincts and Regions (Victoria); Trade and Investment Queensland (BSMQ); Small Business Development Corporation (Western Australia); Department for Innovation and Skills (South Australia); Department of State Growth (Tasmania); Department of Industry, Tourism and Trade (Northern Territory); and ACT Chief Minister, Treasury and Economic Development Directorate (Australian Capital Territory). The table is the operative map linking jurisdiction to the body designated.

Scope limitation and silence on procedural effect. The instrument is a naming instrument. It does not set out the functions, decision-making procedures, fees, or intergovernmental arrangements that those bodies must follow. Any duties, powers or obligations that attach to an “appropriate regional authority” are to be located in other provisions of the Migration Regulations or the underlying Acts. The instrument is therefore best read as a listing device: it determines which State or Territory bodies are to be treated as appropriate regional authorities within the statutory architecture referenced by reg 1.03, subject to the visa-class and application-date qualifiers in clause 6(1).

The instrument affects several distinct groups by operation and naming. The primary directly affected parties are: (a) the State and Territory departments and authorities listed in clause 6; (b) applicants for the specified visa classes where the State or Territory is relevant; and (c) the Commonwealth migration administration that relies on the definition of “appropriate regional authority” in regulation 1.03.

State and Territory departments and authorities. Clause 6(1) expressly specifies particular departments and authorities. Those bodies are, under the Regulations as referenced by the Note in clause 4, the entities to be treated as the appropriate regional authority for the named visa classes and respective jurisdictions. The designation places those bodies into the statutory structure for whatever tasks or roles the Regulations allocate to an appropriate regional authority. The instrument does not, however, itself lay out what administrative activities the designated body must perform. Practically, those bodies will be expected to be the contact point, assessor, nominator, or adviser in respect of regional aspects of the visa classes as provided for elsewhere in the Regulations and policy instruments.

Visa applicants and their advisers. The instrument affects applicants for the visa classes listed in clause 6(1): AD, BH, DF, UR, and UY, but subject to the temporal restrictions for AD and BH. For AD and BH, the instrument refers to the date the application was made, so only applicants with applications lodged before the specified dates are within the scope. For DF, UR and UY, the clause designates the appropriate regional authorities without a date qualification, so the list applies for those classes where State or Territory involvement under reg 1.03 is relevant. The nature of the effect is designation: applicants and their migration agents, lawyers or accountants who interact with regional authorities will need to direct inquiries, submissions or documentation to the named department for the relevant State or Territory.

Commonwealth migration administration. The Migration Regulations, via reg 1.03, use the phrase “appropriate regional authority” to pin responsibilities or to create hooks for State and Territory input into visa grant processes. By specifying which State or Territory bodies occupy that role, LIN 20/236 changes which external organisations the Commonwealth will look to for regional input on those visa classes. The instrument therefore affects intergovernmental coordination, by determining which domestic authorities are engaged where regional input is required under the broader migration rules.

The instrument does not itself create procedural duties, decision-making discretions, or applicant rights; instead, it operates as an identifying instrument. Clause 6 specifies which State or Territory departments and authorities are to be regarded as the appropriate regional authority for the listed visa classes, but the instrument is silent on what duties or rights attach to that status. For duties and rights, legal effect follows from the Migration Regulations and any other statutory or administrative materials that use the term “appropriate regional authority.”

Consequently, the key legal effect of this instrument is classificatory: it supplies the identity of the body that will be the recipient of any obligations or powers that the Regulations impose on, or confer to, an appropriate regional authority. For example, if the Migration Regulations require the appropriate regional authority to provide a regional endorsement, to assess investment proposals, or to certify particular facts, then the duties to perform those acts are imposed elsewhere. Clause 4 reinforces this relationship by defining “Regulations” as the Migration Regulations 1994 and by including a Note that reproduces the essential statutory link between reg 1.03 and a Ministerial legislative instrument that specifies the relevant department.

Rights available to applicants under the Migration Regulations that are linked to the role of an appropriate regional authority likewise do not arise from LIN 20/236 itself. Rather, the instrument identifies which body is the addressee or source of the relevant right under those other provisions. For example, if a Regulation authorises an applicant to seek a regional nomination from an appropriate regional authority, the instrument determines which State or Territory department is the entity to be asked. This means that applicants’ practical rights to seek or obtain particular regional inputs are mediated by the interplay of LIN 20/236 and the Migration Regulations.

Temporal qualifications in clause 6(1) create a nuanced distribution of duties and rights. Class AD is limited to applications made prior to 1 March 2003 and Class BH to those made prior to 1 July 2013. That qualification narrows the set of applications for which the named bodies can be treated as the appropriate regional authority under reg 1.03. Practitioners must therefore identify whether a particular application falls within those date thresholds before relying on the list.

The instrument also removes any doubt that the previous legislative instrument IMMI 10/041 is superseded, by repealing it under clause 5. That repeal is effected in accordance with subsection 33(3) of the Acts Interpretation Act 1901. The practical consequence for duties and rights is that the current list of appropriate regional authorities is the one in LIN 20/236; any duties or rights that referenced IMMI 10/041 are now to be located via the contemporary instrument.

LIN 20/236 does not itself create penalties, offences, or enforcement powers. The instrument is a designation order: it names specific Departments or authorities as the appropriate regional authorities for certain visa classes. There are no clause(s) within the instrument that prescribe sanctions, compliance notices, enforcement procedures, review pathways, or criminal or civil penalties. Clause 6 supplies the list, clause 5 repeals the previous instrument in accordance with subsection 33(3) of the Acts Interpretation Act 1901, and clause 2 fixes commencement. None of these provisions creates penalty mechanisms.

Enforcement and penalties, to the extent they arise, are matters external to this instrument and would be located in the Migration Regulations 1994, the Migration Act or other statutes, or in administrative practice. Clause 4 defines “Regulations” as the Migration Regulations 1994, and the Note in clause 4 explains that reg 1.03 contemplates a Ministerial legislative instrument specifying which State or Territory departments are appropriate regional authorities. Any regulatory provision in those statutes that imposes obligations on appropriate regional authorities or imposes penalties for non-compliance would remain applicable, but LIN 20/236 itself does not specify them.

The repeal in clause 5 is effected “in accordance with subsection 33(3) of the Acts Interpretation Act 1901.” That reference is to a statutory repeal provision used to manage the lifecycle of instruments, not to an enforcement regime for substantive immigration obligations. It indicates that the instrument’s legal housekeeping includes formal rescission of the earlier IMMI 10/041 instrument. The practical administrative consequence is that the earlier instrument ceases to be the operative legislative instrument naming appropriate regional authorities, and any compliance or enforcement mechanisms that previously referred to IMMI 10/041 must now be read with LIN 20/236.

For practitioners and administrators, the absence of penalties or enforcement text within LIN 20/236 means that questions about accountability, compliance standards for the named departments, or remedies for applicants must be resolved by reference to the Migration Regulations or other applicable statutory instruments. LIN 20/236 does not alter or prescribe those remedies; it only identifies the entity to which any regulatory duties attach under the broader legislative scheme.

LIN 20/236 operates within the architecture created by the Migration Regulations 1994 and the Acts Interpretation Act 1901. The instrument is expressly made under the definition of “appropriate regional authority” in regulation 1.03 of the Regulations, see clause 3, and clause 4 defines “Regulations” as the Migration Regulations 1994. The Note in clause 4 reproduces the functional link in reg 1.03: an appropriate regional authority is a Department or authority of a State or Territory specified in a Ministerial legislative instrument. LIN 20/236 is that legislative instrument for the visa classes and State/Territory combinations specified in clause 6(1).

The instrument therefore interacts with other provisions by identifying the body referenced wherever the Regulations or other migration provisions use the term “appropriate regional authority.” Any statutory power, duty, test, requirement, or right located in the Migration Regulations or the Migration Act that depends on an appropriate regional authority must be applied with respect to the department named in LIN 20/236 for the relevant State or Territory and the relevant visa class. For example, if a Regulation requires the applicant to obtain a regional endorsement from the appropriate regional authority, LIN 20/236 directs which body will provide that endorsement for the named classes.

Clause 5 repeals the prior legislative instrument Appropriate Regional Authority (IMMI 10/041) (F2010L01487). The repeal is carried out “in accordance with subsection 33(3) of the Acts Interpretation Act 1901.” The interaction here is procedural: the Acts Interpretation Act provides mechanisms for the making, repeal and interpretation of legislative instruments. The repeal migrates the listing function from the prior instrument to LIN 20/236, and any cross-references in the regulatory or administrative framework that previously relied on IMMI 10/041 must now be read as referring to LIN 20/236, absent further amendment.

The instrument does not amend the Migration Regulations directly. Instead it functions as the companion legislative instrument that reg 1.03 anticipated. Therefore, LIN 20/236 should be read together with reg 1.03 and any Migration Regulations that invoke the concept of an “appropriate regional authority.” For practitioners that means identifying the specific Migration Regulation provisions that allocate tasks to the appropriate regional authority and then using LIN 20/236 to determine which State or Territory body must be worked with or relied upon.

Other statutes and administrative instruments that reference the specific named departments will interact with LIN 20/236 only to the extent those instruments rely on the Migration Regulations’ framework. The instrument does not displace or alter any departmental powers that arise under State or Territory law. It simply identifies which State or Territory body is to be treated as the appropriate regional authority under the Commonwealth migration regulatory framework.

LIN 20/236 itself records a limited amendment history by way of repeal of the earlier instrument. Clause 5 expressly repeals the instrument Appropriate Regional Authority (IMMI 10/041) (F2010L01487). The repeal is effected under subsection 33(3) of the Acts Interpretation Act 1901, which governs the operation of legislative instruments, but no other amendments to LIN 20/236 are recorded within the text provided.

The instrument’s commencement provision, clause 2, states that it commences the day after it is registered on the Federal Register of Legislation. That mechanism is the standard commencement route for legislative instruments. The instrument’s name and citation are established in clause 1: it is the Migration (Appropriate Regional Authority) Instrument (LIN20/236) 2020 and may be cited as LIN 20/236.

There is no further textual history, amendment log, or transitional provision within the instrument itself. The only explicit historical action recorded is the formal repeal of IMMI 10/041. Practically, the repeal indicates that LIN 20/236 either updates, replaces or consolidates the list of appropriate regional authorities previously provided under IMMI 10/041. The instrument does not indicate why the replacement was made, nor does it preserve the text of IMMI 10/041 within a schedule, nor does it provide transitional arrangements for any ongoing processes. It simply effects the repeal and substitutes the current list.

Because the instrument refers to application-date cut-offs for Class AD and Class BH, those temporal references indirectly encode steps in the historical evolution of the visa classes. Clause 6(1)(a) ties Class AD to applications made prior to 1 March 2003; clause 6(1)(b) ties Class BH to applications made prior to 1 July 2013. Those dates indicate the points at which the instrument confines the designation for those particular legacy visa classes. LIN 20/236 does not explain the reason for those temporal boundaries; it records them as operative limits.

For researchers and practitioners seeking the history of how the list of appropriate regional authorities has changed over time, the instrument provides a starting point: the previous instrument IMMI 10/041 is explicitly repealed, implying it contained an earlier list. To trace amendments or prior configurations, one would need to consult the now-repealed IMMI 10/041 and any earlier instruments, but those texts are not reproduced within LIN 20/236. The instrument, as published, therefore records a discrete update: the existing operative list is LIN 20/236, and any prior list under IMMI 10/041 has been formally rescinded.

The instrument contains no record of litigation. There are no references to judicial decisions, challenges, or court orders within the text. LIN 20/236 is a legislative instrument; it neither records nor summarises any litigation involving its terms, the earlier IMMI 10/041 instrument, or the named Departments and authorities. The absence of a litigation history in the text means that the instrument itself has not been annotated with any judicial interpretation or contested enforcement outcomes.

For practitioners and researchers, the absence of litigation noted in the instrument carries two practical implications. First, there is no guidance from the instrument on how courts have interpreted the function or scope of an “appropriate regional authority” in the context of the list. Any legal questions as to the role, status or duties of the named State or Territory bodies under the Migration Regulations would have to be resolved by consulting the Migration Regulations, the Migration Act, or by reference to case law that exists outside of this instrument, bearing in mind that LIN 20/236 itself does not summarise or reference such cases.

Second, because the instrument repeals the prior IMMI 10/041 instrument by clause 5, any litigation that turned on the content of IMMI 10/041 would need to be identified from external records. LIN 20/236 provides no transitional or saving clauses that refer to ongoing litigation. In practical terms, if there were ongoing judicial proceedings that relied on the previous instrument, the repeal could become relevant to the parties only if the question at issue involves the identity of the appropriate regional authority and the dates or facts fall within the scope of LIN 20/236 versus the repealed instrument. The instrument itself does not address or resolve such contingencies.

Because LIN 20/236 is a naming instrument, disputes about its effects are most likely to be about whether a particular State or Territory department was correctly designated for a particular visa application, particularly where application-date qualifiers are in play. Any litigation that addresses those disputes will therefore necessarily engage both the text of LIN 20/236 and the relevant provisions of the Migration Regulations. The instrument does not, however, provide any record of prior litigation to indicate how those interactions have been resolved judicially.

Several practical pitfalls arise from the instrument’s form and content. These are matters of legal and administrative care that practitioners should explicitly check rather than assume.

Temporal qualification traps. Clause 6(1)(a) and (b) tie Classes AD and BH to specific application-date cut-offs. For Class AD the instrument applies only “where an application was made prior to 1 March 2003.” For Class BH the instrument applies only “where an application was made prior to 1 July 2013.” A practitioner relying on the list for a given matter must confirm the date on which the relevant application was made. If the application date falls on or after the cut-off, the instrument does not designate the named department as the appropriate regional authority for that application per the terms of clause 6(1). The instrument does not explain transitional arrangements or how to treat borderline cases; the text is categorical.

Designation without function. LIN 20/236 names the departments but does not describe what those bodies must do, how they decide matters, or what standards they must apply. Any rights, duties or procedures in practice will be found in the Migration Regulations or in departmental policies. Practitioners must not assume that the named department has particular procedural obligations simply because it is listed. The instrument is a naming instrument only.

Repeal of prior instrument. Clause 5 repeals IMMI 10/041. If a practitioner is working with older documentation or references that cite the repealed instrument, they must ensure that any transitional obligations, references, or administrative practices still validly refer to the current instrument. The instrument contains no transitional clauses preserving any prior administrative arrangements.

State and Territory naming specificity. The table in clause 6 lists specific departmental names. In some jurisdictions department names and machinery of government can change over time. The instrument uses the names current at the time of drafting. If an entity has been restructured, renamed, or had functions moved to another department since the instrument’s registration, the instrument does not itself update those facts. The legal label is attached to the department as specified. Users should confirm whether the named department remains the correct legal entity to contact or whether internal State or Territory reorganisations require alternative arrangements.

No penalties or enforcement details. The instrument does not provide enforcement mechanisms for duties that may attach to an appropriate regional authority under other provisions. If a practitioner needs recourse against an authority for failure to perform a function, the instrument does not help locate remedies. One must look to the Migration Regulations, the Migration Act or other relevant law to establish remedies, review rights, or enforcement pathways.

Compliance with the consequences of LIN 20/236 requires a clear, stepwise approach that recognises that the instrument is a naming device and that procedural and substantive obligations are defined elsewhere. The following steps are grounded in the instrument’s text and the chain to the Migration Regulations as set out in clause 3 and clause 4.

1. Confirm visa class and application date. Before taking any action, confirm that the matter concerns one of the visa classes listed in clause 6(1): AD, BH, DF, UR, or UY. If the visa class is AD or BH, check the precise date on which the application was made to determine whether the temporal condition in clause 6(1)(a) or (b) is met. If the application was made on or after the specified date, the instrument’s designation does not apply for that class.

2. Identify the relevant State or Territory. Match the applicant’s intended State or Territory of relevance with the table in clause 6. The table pairs each State or Territory with its designated department. Use the exact naming in clause 6 to determine which body is specified. For example, for Victoria the designated body is the Department of Jobs, Precincts and Regions. For New South Wales the designated body is New South Wales Treasury.

3. Consult the Migration Regulations. Because LIN 20/236 is made under reg 1.03 (clause 3) and defines “Regulations” as the Migration Regulations 1994 (clause 4), identify the specific provisions in the Migration Regulations and the Migration Act that generate obligations, endorsements, nominations or inputs from an appropriate regional authority. The instrument does not create duties; responsibilities are implemented via the Regulations. Compliance therefore requires acting in accordance with those other provisions.

4. Engage the named department appropriately. Where an interaction with an appropriate regional authority is required under the Migration Regulations, address that interaction to the department named in clause 6 for the relevant State or Territory. Confirm current contact points and procedural requirements with the department, because the instrument names the department but does not set their internal administrative processes.

5. Check for organisational changes. Departmental structures can change. Although LIN 20/236 names a department by its title at the time of the instrument, confirm that the named body remains the correct legal entity to act as the appropriate regional authority. If the department has been renamed or its functions have been moved, obtain confirmation from the State or Territory that the named entity remains the designated body.