Migration (Arrangements for certain business skills visas) Instrument (LIN 21/026) 2021

This legislative instrument, the Migration (Arrangements for certain business skills visas) Instrument (LIN 21/026) 2021, prescribes the approved forms, the approved manners and the approved places for lodging applications for specified business‑skills visa classes and subclasses. The instrument is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations) (instrument heading), and operates as a subordinate legislative instrument that fixes administrative lodging pathways rather than changing substantive visa criteria.

Mechanically, section 4 declares that, for the purposes of subregulation 2.07(5) of the Regulations, the approved form, manner and place for an application for a visa of a class and subclass mentioned in an item of Schedule 1 are the form and the manner and place mentioned in that item (s 4). Schedule 1 then lists six items that map specific Regulations items (by reference number) and visa class/subclass combinations to a single approved form and to a specified manner and place for application (Schedule 1 (s.4)). The instrument also defines “authorising email” and “Department” (s 3), which are used in Schedule 1 to permit limited officer authorisation for alternative lodgement by email.

The instrument therefore performs a narrow, mechanical function: it standardises how and where applications for particular business‑skills visas listed in Schedule 1 must be lodged (internet, post, courier or by email when authorised), and which form(s) must be used. It does not itself set eligibility criteria for visas, nor does it set fees or penalties. The compilation notes record that the instrument was originally registered 1 March 2021 and commenced 2 March 2021, and that it was amended by Migration (Arrangements for certain business skills visas) Amendment (LIN 24/078) Instrument 2024, registered 5 December 2024 and commenced 6 December 2024 (Endnote 3). Endnotes also record that Schedule 1 item 5 was replaced by the 2024 amendment (Endnote 4).

Because the instrument is made under subregulation 2.07(5) of the Regulations, its practical legal effect is to give force to the administrative requirement in that Regulations provision: an applicant for one of the listed visas must use the form and lodge in the manner and place specified in the relevant Schedule 1 item. The instrument supplies the precise form numbers (for example, Form 1396, Form 47BU, Form 47NI, Form 47BT) and the physical or electronic channels by which those forms must be delivered (for example, internet application, post to Adelaide Business Skills Processing Centre, courier to specified Adelaide street address, courier to Australian Consulate General in Hong Kong for certain applicants, or email where authorised). Section 3 defines “authorising email” as an email sent by an officer of the Department authorising an applicant to use an alternative form, place or manner; item 5 of Schedule 1 uses that definition to permit authorised email lodgement for Subclass 858 in limited circumstances.

The instrument is a focused administrative specification. It centralises and standardises lodgement for a set of business‑skills visa subclasses and provides a mechanism for limited officer discretion (authorising email) to allow alternative lodgement by email for one subclass. The instrument’s compilation notes also show repeals of some of its own technical sections under the Legislation Act 2003 (Endnote 4), and replacement of Schedule 1 item 5 by the 2024 amendment (Endnote 4).

The instrument uses a small set of legal and administrative concepts to do its work. The primary statutory concepts are:

• Approved form, manner and place: Section 4 links the instrument to subregulation 2.07(5) of the Regulations by declaring that the approved form, approved manner and approved place for applications listed in Schedule 1 are those specified in the same Schedule (s 4). This is the operative concept: the instrument is the mechanism for prescribing the exact form and lodgement channel required for the listed visa subclasses.

• Schedule 1 mapping: Schedule 1 contains the substantive mapping. Each item in Schedule 1 identifies (a) an item number from the Regulations’ Schedule 1 (for administrative cross‑reference); (b) the visa class and subclass or subclasses covered by that item; (c) the specific approved form or forms; and (d) the approved manner and place for lodging the application (Schedule 1 (s.4)). The Schedule is organised as a table with six items covering different business‑skills visas.

• Form numbers and multi‑form packages: The instrument identifies precise Department forms by number and, where appropriate, requires combinations of forms. For example, Item 4 mandates different combinations of Form 47BU, Form 1217 and Form 949 depending on which subclass (Subclass 890, 891, 892, 893) an applicant seeks to satisfy (Schedule 1 item 4). Item 6 requires Form 47BT together with one of Forms 1136, 1137 or 1139 (Schedule 1 item 6). The instrument therefore mandates not only which single form to use but in some cases a multi‑form package.

• Approved manners: The instrument distinguishes between lodgement “as an internet application” and lodgement “by post” or “by courier service delivery” to a named processing centre (Schedule 1 items 1-3, 4, 6). Item 5 allows two manners: internet, or where an authorising email permits, by email to the official email address specified and before the period stated in that authorising email (Schedule 1 item 5).

• Authorising email: Section 3 defines “authorising email” as an email sent by an officer of the Department, authorising an applicant to make an application using an alternative form, in an alternative place or in an alternative manner (s 3). Item 5 relies on that definition to allow applications using Form 47NI to be lodged by email if the applicant has such an authorisation, and only to the official email address and within the period stated in the authorising email (Schedule 1 item 5).

The instrument directly affects a clearly defined set of people and entities by specifying the mandatory lodging forms and channels for particular business visas. The directly affected parties are:

• Visa applicants for the listed business skills classes and subclasses. Schedule 1 (s.4) lists the precise visa classes and subclasses covered: Subclass 132 (Business Talent) (Item 1, Reg item 1104AA); Subclass 888 (Business Innovation and Investment Provisional) (Item 2, Reg item 1104BA); Subclass 188 (Business Innovation and Investment (Provisional)) (Item 3, Reg item 1202B); Subclasses 890, 891, 892, 893 (Residence Business Skills) (Item 4, Reg item 1104B); Subclass 858 (National Innovation) (Item 5, Reg item 1113); and Subclasses 160-165 (Business Skills Provisional class UR) (Item 6, Reg item 1202A). Anyone intending to lodge an application for one of these subclasses must follow the specified form and lodgement method.

• Applicants resident in particular jurisdictions. Item 6 treats applicants differently depending on the residential address they provide on Form 47BT: if the residential address is in Taiwan or the People’s Republic of China (including Hong Kong and Macau), the approved place is the Australian Consulate General in Hong Kong; in all other cases the lodgement is to the Adelaide Business Skills Processing Centre (Schedule 1 item 6). That distinction directly affects applicants in those jurisdictions and determines whether they must courier to Hong Kong or route to Adelaide.

• The Department of Home Affairs and its processing centres. The instrument directs physical mail and couriered applications to named Department postal and street addresses (Schedule 1 items 4 and 6). This concentrates physical receipt and initial handling for several visa subclasses at the Adelaide Business Skills Processing Centre and assigns an operational routing for staff and logistics.

• Officers of the Department with authority to issue authorising emails. Section 3 defines an “authorising email” as an email sent by an officer of the Department that authorises alternative lodgement (s 3). Item 5 uses that mechanism to permit officer discretion in authorising certain Subclass 858 applicants to lodge by email to a specific official email address and within a stated period (Schedule 1 item 5). Officers who send such emails thereby alter the approved manner/place for particular applicants.

• Intermediaries and service providers. Agents, migration agents, immigration lawyers, courier companies and postal services that deliver applications on behalf of applicants will be affected because the instrument prescribes postal and courier addresses (Schedule 1 items 4 and 6) and specific internet forms. These intermediaries absorb handling, postage and courier costs and must ensure correct addressing and compliance with the instrument when preparing applications.

The instrument creates administrative duties for applicants and operational obligations for the Department and its officers; it does not create express private rights or civil penalties within its text.

Key duties imposed by the instrument

• Use the approved form: For each visa subclass listed in Schedule 1, an applicant must use the specific form or combination of forms listed in the relevant item (s 4; Schedule 1). For example, Subclass 132 applicants must use Form 1396 (Internet) (Schedule 1 item 1). Subclass 890 applicants must use Form 47BU and Form 1217 (Schedule 1 item 4). Subclass 160-165 applicants must use Form 47BT and one of Forms 1136, 1137 or 1139 (Schedule 1 item 6). The instrument therefore places the duty on an applicant to identify and lodge the correct form set.

• Lodge by the approved manner and to the approved place: The applicant must lodge applications in the manner and at the place specified in Schedule 1 for the relevant subclass (s 4; Schedule 1). Many items specify lodgement “as an internet application” (Schedule 1 items 1-3), while others specify postal or courier delivery to the Adelaide Business Skills Processing Centre (Schedule 1 items 4 and 6). Item 5 permits internet lodgement or, if an officer issues an authorising email, an email lodgement to a specified official address and within a stated period (Schedule 1 item 5).

• Comply with any limits in an authorising email: Where an authorising email is used (Schedule 1 item 5), applicants must lodge to the official email address specified in the authorising email and within the timeframe specified. The instrument defines an “authorising email” as an email from an officer of the Department that authorises the alternative lodgement (s 3). The duty therefore includes ensuring the email is a bona fide authorisation from a Department officer and complying with its stated requirements.

Operational duties and officer discretion

• Department officers have discretion to issue authorising emails: Section 3 defines an authorising email and Schedule 1 item 5 relies on officer-issued authorisation to permit email lodgement of Form 47NI in lieu of internet lodgement. The instrument therefore assigns to authorised Department officers the operational duty (and discretion) to permit alternative lodgement in individual cases.

• Department is obliged to receive applications at the specified addresses and channels: The instrument specifies departmental postal and courier addresses (Schedule 1 items 4 and 6), and in doing so operationally obliges the Department to accept and process lodgements at those points; it centralises intake for the listed visas.

The instrument itself does not prescribe criminal offences, civil penalties or formal enforcement mechanisms. Its text is limited to specifying approved forms, manners and places for applications for specified visa subclasses (s 4; Schedule 1). There are no penalty clauses, infringement notices, or enforcement provisions in the instrument as provided.

What the instrument does for enforcement

• De facto enforcement through the Regulations: The instrument is made under subregulation 2.07(5) of the Migration Regulations 1994 (instrument heading). Enforcement or consequences for failing to comply with the form/manner/place requirements are a matter of the Regulations and the Department’s administrative practice. The instrument does not itself state the legal consequence of lodging in a manner not approved; rather, that legal consequence would be determined by the Regulations (not reproduced in this instrument) and by Departmental processing policy. Users are directed by the instrument to the Regulations for the legal context of approved forms, manner and place (s 4).

• Operational handling and possible administrative rejection or return: While the instrument is silent on the direct legal consequences of non‑compliance, the practical effect is that the Department expects lodgement in the prescribed manner and place. In administrative practice (not set out in this instrument), incorrect lodgement channels can lead to delayed processing, requests for resubmission, or the application being treated as not validly made. The instrument itself does not specify that outcome; to determine legal enforceability one must consult the Regulations and Departmental procedural guidance.

• Officer discretion and the authorising email: The instrument gives officers the operational ability to authorise alternative lodgement by email for Subclass 858 applications by issuing an “authorising email” (s 3; Schedule 1 item 5). The instrument does not contain standards for exercise of that discretion, nor does it create procedural protections or review rights arising from the officer’s decision to authorise or withhold such an email. Any enforcement relating to misuse of that mechanism would therefore depend on departmental policy or general administrative law principles rather than the instrument.

• No express administrative or judicial review pathways in the instrument: The instrument contains no provisions about internal review, merits review, merits appeals, or judicial review. Any dispute about whether an application was lodged in the approved manner or whether an authorising email was properly issued would turn on the Regulations, administrative policy and general administrative law (which are outside the instrument).

The instrument is explicitly subordinate to and dependent on the Migration Regulations 1994 and interacts with the broader legislative ecosystem in several documented ways.

Hierarchy and enabling provision

• Made under the Regulations: The instrument is made under subregulation 2.07(5) of the Migration Regulations 1994 (instrument heading). Its legal effect depends on that enabling provision. Section 4 says the instrument prescribes the approved form, manner and place “for subregulation 2.07(5) of the Regulations” (s 4). Therefore, the instrument cannot operate independently of the Regulations’ power to require an approved form, manner and place.

• Forms and other instruments are cross‑referenced: The instrument requires Department forms by number (e.g. Form 1396, Form 47BU, Form 47NI, Form 47BT). Those forms and any conditions attached to them are likely governed by separate administrative instruments or departmental policies outside this instrument. The instrument interacts with those instruments and administrative arrangements by mandating their use for particular visa subclasses (Schedule 1).

Relationship to the Legislation Act and compilation rules

• Compilations and amendment practice: The compilation materials and endnotes show the instrument is presented as a compilation current to 6 December 2024 (Compilation heading; Endnote 1). Endnote 4 records that sections 2 and 5 have been repealed by the Legislation Act 2003 (Endnote 4). The instrument’s presentation as a compilation therefore interacts with the Legislation Act’s rules on commencement, automatic repeal of commencement provisions, and automatic repeal of repeal provisions. Those statutory mechanics shape the lifecycle of subordinate instruments and their internal provisions.

Administrative and operational interdependence

• Interaction with Departmental procedures: By prescribing physical postal and courier addresses (Schedule 1 items 4 and 6) and permitting electronic lodgement channels, the instrument interacts with Department of Home Affairs processing arrangements. The Department’s internal procedures for intake, acknowledgement, file opening, and data capture will apply to applications lodged under the instrument. The instrument does not itself set those operational standards; it creates the routing that those standards will implement.

• Intersection with immigration law and procedural rights: While the instrument prescribes lodgement mechanics, substantive rights, obligations and review mechanisms in migration law will remain governed by the Migration Act 1958 and Migration Regulations 1994. Any question about the legal validity of an application, the consequences of an incorrectly lodged application, or the ability to seek merits review or judicial review will therefore require reference to those primary instruments, not this instrument.

The compilation materials include a focused amendment history for the instrument. Endnote 3 and Endnote 4 supply the recorded legislative timeline and a table of revisions.

Timeline and registration

• Original instrument: The Migration (Arrangements for certain business skills visas) Instrument (LIN 21/026) 2021 was registered on 1 March 2021 (F2021L00171) and commenced on 2 March 2021 (Endnote 3). This is the instrument’s original registration and commencement information as recorded in the compilation’s legislation history.

• Amending instrument: The Migration (Arrangements for certain business skills visas) Amendment (LIN 24/078) Instrument 2024 was registered on 5 December 2024 (F2024L01417) and commenced on 6 December 2024 (Endnote 3). The compilation date is 06 December 2024, and the compilation indicates the text shown includes the 2024 amendment (Compilation heading; Endnote 3).

Recorded provision changes

• Schedule 1 item 5 replaced: Endnote 4 records that Schedule 1 (table item 5) was “rs.” (repealed and substituted) by the 2024 amendment (F2024L01417). The compiled text therefore reflects the post‑amendment form of item 5, which now sets the approved form for Subclass 858 as Form 47NI (Internet) or, if authorised in an authorising email, Form 47NI lodged by email to the official departmental email address specified in the authorising email and within the stated period (Schedule 1 item 5). The compilation does not show the pre‑amendment text for item 5; it only records that replacement occurred (Endnote 4).

• Repeals under the Legislation Act: Endnote 4 also shows non‑operational, technical repeals: section 2 of the instrument was repealed by the Legislation Act 2003, section 48D (automatic repeal of commencement provision), and section 5 was repealed by the Legislation Act 2003, section 48C (automatic repeal of repeal provision). These are standard amendments that clean up commencement or repeal provisions when instruments are compiled; they do not directly change the operational Schedule specifying forms and lodgement channels, but they are recorded because they affect the text history (Endnote 4).

Compilation context and uncommenced amendments

• Compilation notes: The compilation notes explain that the compilation shows the text of the law as amended and in force on 06/12/2024 and that any uncommenced amendments are listed in endnotes and accessible on the Federal Register of Legislation (Compilation heading). The instrument’s endnotes instruct readers to check the Register for details of any uncommenced amendments or modifications that do not amend the text of the compiled law (Compilation heading; Endnotes 1-4).

The compiled instrument and its endnotes do not record any litigation history. The endnotes that accompany the compilation provide information about amendment and legislation history (Endnotes 1-4) but contain no entries describing judicial or tribunal cases that have considered the instrument.

What the compilation records

• No recorded cases: Endnote 3 (Legislation history) and Endnote 4 (Amendment history) detail registration, commencement and amendment information only. There are no entries in the endnotes or in the instrument text itself that mention litigation, judicial decisions, tribunal findings or court‑ordered interpretations concerning the instrument’s validity, operation or interpretation.

How parties generally litigate instrument‑related disputes

• Likely locus of dispute is the Regulations or administrative practice: If a dispute arises that is connected to lodgement methods prescribed by this instrument , for example, whether an application lodged in a non‑prescribed manner should be treated as valid , any litigation or tribunal review would ordinarily invoke the Migration Regulations 1994 (including subregulation 2.07(5)) and the Migration Act 1958, or administrative law remedies for the Department’s handling of an application. The instrument itself is a subordinate instrument; courts or tribunals commonly interpret the principal statute or regulations and the administrative decision.

• No instrument‑specific reported litigation recorded here: Because the present compilation does not show any litigation history for the instrument, researchers and practitioners should not assume the instrument has been the subject of court or tribunal rulings. If litigation exists, it is not recorded in the instrument’s endnotes and must be searched for in judicial databases or the Tribunal’s records independently.

Practical consequence

• If legal challenge is contemplated, begin with the Regulations and Departmental directions: Parties challenging the Department’s treatment of an application lodged in a manner they consider authorised should expect to rely on the Migration Act, the Migration Regulations, Departmental instructions and administrative law principles. The instrument provides the technical pathway for lodgement; its lack of recorded litigation means there is no instrument‑specific body of case law to consult in the endnotes.

In the absence of instrument‑specific litigation recorded in the compilation, parties should search external legal databases or the Federal Register for case law that engages with the Regulations and Departmental processing practices that this instrument implements.

This instrument is tightly focused and operational, so a number of practical pitfalls arise from its specific prescriptions. The following “gotchas” are grounded in the instrument’s text and in the practical mechanics it prescribes.

1. Wrong form or missing companion forms will matter

• Several Schedule 1 items require specific form combinations. Item 4 requires Form 47BU and, for some subclasses, Form 1217 and/or Form 949 depending on the subclass sought (Schedule 1 item 4). Item 6 requires Form 47BT and one of Forms 1136, 1137 or 1139 (Schedule 1 item 6). Using the wrong single form, omitting a required companion form, or submitting a different Department form risks non‑compliance with the instrument’s prescription. The instrument makes no concession for substitute or incorrectly numbered forms.

2. Internet-only vs postal/courier distinctions are strict

• Items 1-3 and item 5 (absent authorising email) mandate internet application (Schedule 1 items 1-3 and 5). Items 4 and 6 require postal or courier delivery to the Adelaide Business Skills Processing Centre (Schedule 1 items 4 and 6), except for the Taiwan/PRC residential address exception in item 6, which routes to the Hong Kong Consulate. Lodging a paper application where the Schedule requires internet, or vice versa, can lead to processing issues. The instrument does not include a general fallback or waiver.

3. Authorising email is narrowly defined and limited

• An “authorising email” must be “an email sent by an officer of the Department” (s 3). Item 5 allows lodging Form 47NI by email only if authorised in such an email and only to the official email address specified in that authorising email and before the end of the period stated in the authorising email (Schedule 1 item 5). Applicants relying on purported email authorisation from non‑Department addresses or from someone without officer status will not satisfy the instrument’s definition. The authorised email will also define a strict time window.

4. Geographic routing for PRC/Taiwan/Hong Kong/Macau addresses

• Item 6 requires applicants who provide a residential address in Taiwan or the People’s Republic of China (including Hong Kong and Macau) on Form 47BT to courier their application to the Australian Consulate General in Hong Kong (Schedule 1 item 6). If an applicant with such an address instead posts or couriers to the Adelaide Business Skills Processing Centre, their lodgement will not comply with the Schedule routing. The instrument requires the residential address to be the one “provided to the Department using Form 47BT” which creates a dependency on accurate address disclosure on that form.

Compliance with this instrument is straightforward in principle: identify the correct Schedule 1 item for the visa subclass you intend to apply for, use the specified form(s), and lodge in the specified manner and to the specified place. The steps below translate the instrument’s text into an operational checklist.

Step 1 , Identify the visa subclass and the correct Schedule 1 item

• Consult Schedule 1 (s.4) to locate the item corresponding to the relevant Migration Regulations item and visa subclass. The Schedule links each Regulations item number to visa class/subclass combinations, for example:
  • Item 1 (Reg item 1104AA) , Subclass 132 Business Talent , Form 1396 (Internet) (Schedule 1 item 1).
  • Item 4 (Reg item 1104B) , Subclasses 890, 891, 892, 893 , specified combinations of Form 47BU, Form 1217 and Form 949 and lodgement by post or courier to Adelaide (Schedule 1 item 4).
  • Item 6 (Reg item 1202A) , Subclasses 160-165 , Form 47BT plus one of Forms 1136, 1137 or 1139; lodgement depends on residential address provided on Form 47BT (Schedule 1 item 6).

Step 2 , Acquire and complete the correct form(s)

• Obtain the Department forms specified by number in the Schedule item. Complete all required companion forms when the Schedule item lists multiple forms. For example:
  • Subclass 890 applicants must complete Form 47BU and Form 1217 (Schedule 1 item 4).
  • Subclass 160-165 applicants must complete Form 47BT and either Form 1136, 1137 or 1139 (Schedule 1 item 6).
• Ensure the residential address used for Form 47BT is accurate, because Item 6’s approved place depends on the residential address provided on Form 47BT (Schedule 1 item 6).

Step 3 , Choose and verify the approved lodgement manner

• For items that require internet application, lodge by the Department’s internet application facility using the specified internet form version (Schedule 1 items 1-3 and 5).
• For items that require postal lodgement, post the application with “correct prepaid postage” to: Adelaide Business Skills Processing Centre, Department of Home Affairs, GPO Box 2399, Adelaide SA 5001, Australia (Schedule 1 items 4 and 6).
• For items that require courier service delivery, use a reputable courier and send to: Adelaide Business Skills Processing Centre, Department of Home Affairs, Level 4, 70 Franklin Street, Adelaide SA 5000, Australia (Schedule 1 items 4 and 6).