Migration (Arrangements for Employer Nomination and Regional Employer Nomination Skilled Visas) Instrument 2024

The instrument introduces and relies on several key concepts that are central to understanding its operation. The first is the approved form. For nominations under regulation 5.19, the instrument specifies form 1395 (Internet) as the default and form 1395 (the paper version, essentially) for manual lodgement when authorised. For visa applications, form 1408 (Internet) is the general approved form. The concept of an “Internet application” is defined by reference to the Act and Regulations; it means an application made through the Department’s online portal. The instrument does not create a definition of “Internet application” but notes that term is already defined in the Act. The practical consequence is that any application not made through the online system is not an Internet application and may be invalid unless the instrument expressly permits another manner.

The central concept of the “different way” of making a nomination application appears in section 7. This is a permissive, not mandatory, alternative to the standard internet lodgement. It applies only when a Department officer has sent an authorisation from the specific email address. The authorisation is not a general delegation; it is a one‑off signal that the applicant may use the email method for that specific application. The instrument does not specify who within the Department can send such authorisations, nor does it set out any criteria for the officer’s decision to send it. The only constraint is that the authorisation must be sent by email from e186.Manual.Lodgement@homeaffairs.gov.au. This creates a single point of control and a potential bottleneck.

The circumstances that trigger the manual lodgement option are carefully defined. The first category (subsection 7(3)) requires that the Department has identified a problem with its Internet application systems (not the applicant’s systems), that the problem prevents the applicant from making an Internet application, that electronic lodgement is not otherwise prohibited, and that it is more likely than not the problem will not be rectified by the end of the next business day. Additionally, there must be a precipitating urgency: the affected visa applicant will become an unlawful non‑citizen, will no longer hold a specified bridging visa, or will turn 45 on or before the next business day after the expected rectification day. This is a high‑urgency threshold; it excludes routine delays or minor inconveniences. The second category (subsection 7(4)) is broader: it covers permanent system failures that the Department cannot fix, but it does not require the urgency factors. In both categories, the applicant must submit the completed form and the copy of the authorising email by the end of the day the authorisation was given, in AEST or AEDST as applicable.

The concept of “business day” is critical. The instrument uses it to calculate deadlines. It does not define “business day”, but that term is generally understood under the Acts Interpretation Act 1901 to mean a day that is not a Saturday, Sunday, or public holiday in the relevant place. Because the Department is a Commonwealth entity, the relevant public holidays would likely be those of the Australian Capital Territory or as specified in the Department’s administrative guidelines. The tight timeframes mean that an authorisation given late on a Friday afternoon may expire by end of that day, leaving little time for the applicant to prepare and submit the application and copy of the email.

For Class RN visas (subclass 187), no manual lodgement is provided. Section 10 specifies form 1408 (Internet) as the approved form and requires that an application must be made as an Internet application. There is no authorisation provision, no email fallback. This means that if the Department’s systems are down and an applicant cannot lodge online, there is no alternative pathway for subclass 187 applications under this instrument. That asymmetry reflects that the subclass 187 was closed to new applications from March 2018 (replaced by the Subclass 494 visa), so the instrument is likely dealing with a residual cohort. The instrument effectively dead‑ends those applicants if the online system fails.

This instrument directly affects employers who sponsor skilled migrants under the Employer Nomination Scheme (subclass 186) and the Regional Employer Nomination Scheme (subclass 187). Those employers must now use form 1395 (Internet) for nomination applications, unless they receive an authorisation for manual lodgement. The instrument also affects the visa applicants themselves: current or prospective holders of subclass 186 visas (and their family members included in the application) and the residual holders of subclass 187 visas. Migration agents and legal practitioners who assist with these applications need to be aware of the new form references and the manual lodgement contingency, particularly the extreme time limits and the dependence on the Department’s proactive identification of system problems.

The instrument has a particularly acute impact on applicants who face urgent immigration status issues. The manual lodgement option is only available when an applicant is about to become an unlawful non‑citizen, about to lose a specified bridging visa, or about to turn 45 (the age limit for many skilled visas). These are high‑stakes situations. The instrument puts the Department in a gatekeeping role: only an officer can issue the authorisation, and the instrument does not require the Department to do so even if the circumstances are met. This creates a risk that applicants in genuine need may not receive an authorisation and may therefore be unable to lodge a valid application before their status expires. The instrument does not state that applicants can request an authorisation; it only says “if an officer has sent an authorisation”. That passive construction places the burden entirely on the Department to act.

The Department of Home Affairs itself is affected internally. The instrument creates a new manual lodgement workflow that may require allocation of staff to monitor system problems and issue authorisation emails from a dedicated address. This imposes a compliance burden on the Department, including the risk of operational errors (e.g., failing to send authorisations in time, sending them from the wrong address, or misidentifying the nature of the system problem). The instrument does not set out any internal delegation or training requirements, so the risk of inconsistent or delayed decision‑making is real.

Other indirect affectees include businesses that rely on the timely grant of subclass 186 visas to fill skilled positions. Any delay caused by system outages and the lack of a manual fallback (except in the narrow emergency cases) can disrupt workforce planning. For subclass 187 applicants, there is no fallback at all, so any system failure effectively blocks the application until the system is restored, which could be weeks or months. The instrument also affects software vendors who provide lodgement support tools integrated with the Department’s online system; they may need to update their systems to reflect the new form numbers, but the instrument does not require any technical changes to the forms themselves.

The instrument imposes a primary duty on any person making a nomination application for a subclass 186 or 187 visa to use the approved form and manner. For nominations, the duty is to use form 1395 (Internet) unless a manual lodgement authorisation is issued. For visa applications for the Class EN visa, the duty is to use form 1408 (Internet) in an internet application, with the manual email alternative only in the specified circumstances. For Class RN, the duty is exclusively internet application via form 1408 (Internet). Failure to comply with the specified form or manner will likely result in the application being invalid under the Migration Regulations. The instrument does not say that an application made in a non‑complying manner is invalid, but that is the legal consequence under paragraph 5.19(2)(a) and subitems 1114B(1) and 1114C(1) of Schedule 1 to the Regulations: a nomination or visa application must be made in the prescribed form and manner, and if it is not, the application is not a valid application. This is a strict duty with no discretion to cure.

The instrument also creates a conditional right for a person to make a nomination or visa application by email. However, this right is not a unilateral right of the applicant. It arises only if the Department has sent an authorisation email from the specified address. The applicant cannot demand the authorisation or lodge manually without it. Even if the Department’s systems are down, the applicant has no right to use the email path unless the Department proactively sends the authorisation. This is a significant limitation: the instrument shifts control wholly to the Department. The applicant’s right is merely to accept the authorisation if it is offered, and to comply with the strict timeline (submission by end of the day of authorisation). There is no right to a later extension; if the applicant misses the end‑of‑day deadline, the authorisation lapses and the applicant must wait for either the system to be restored or another authorisation (which is not guaranteed).

For the Department, the instrument creates an administrative ability to authorise manual lodgement but no explicit duty to do so. The power is conditional on the circumstances (system problem, urgencies) but the instrument uses “if an officer has sent an authorisation” language, not “must send”. This gives the Department discretion. The only constraints are that the circumstances must exist as a matter of fact. But who determines whether the problem meets the “more likely than not” threshold or whether it is permanent? The instrument implies that the Department makes that assessment. There is no independent review or appeal within the lodgement process. The applicant’s only recourse if the Department fails to issue an authorisation would be to seek judicial review of the decision not to authorise, but that is likely a non‑statutory decision not subject to the merits review under the Migration Act.

The instrument itself does not create any penalties. It is a specification instrument made under a regulation, and it operates at the level of procedural requirements. The enforcement consequences arise from the underlying Migration Act and Regulations. If an application is not made in the approved form or manner, it is not a valid application. The consequence for the applicant is that the Department will not consider the nomination or visa application, and the applicant may lose the opportunity to apply altogether, potentially becoming an unlawful non‑citizen or ageing out of eligibility. There is no ability to “lodge” an application in a different way and later fix the form; the law treats the application as never having been made. This is a harsh but standard design in migration law: form and manner requirements are jurisdictional.

Beyond invalidity, there are ancillary enforcement risks. The manual lodgement process requires the applicant to attach a copy of the authorisation email. If an applicant forges or alters the authorisation email, or submits an application without authorisation claiming the system was down, that could constitute providing false information to a Commonwealth officer, which is an offence under section 234 of the Migration Act (maximum penalty 10 years imprisonment). Similarly, if an applicant misrepresents the circumstances (e.g., claiming they will turn 45 when they will not) to induce the Department to issue an authorisation, that may also attract criminal liability. The instrument does not require the Department to verify the urgency factors before issuing the authorisation, but the applicant who relies on them bears the risk of inaccuracy.

For the Department, there is no penalty specified in this instrument for failing to issue an authorisation or for issuing an authorisation incorrectly. However, a decision to refuse to issue an authorisation could be challenged under administrative law on grounds of unreasonableness, failure to consider relevant matters, or jurisdictional error. But given the instrument does not create a duty, a court would be reluctant to compel the Department to issue an authorisation unless the circumstances were clearly met and the failure was capricious. The instrument’s design insulates the Department from liability because the manual lodgement path is framed as a discretionary permission, not an entitlement.

The repeal of the 2015 instrument means that any incumbent or pending applications that relied on the old form references may be affected. The instrument does not contain transitional provisions. For applications made before 7 December 2024, the old instrument presumably still applies, but any nomination or visa application made on or after 7 December 2024 must comply with the new instrument. The absence of transitional arrangements could create confusion for applications that were in progress but not yet lodged when the repeal takes effect.

The instrument is part of a larger legislative framework. It is made under the Migration Act 1958, specifically under regulation 2.07(5) and regulation 5.19 of the Migration Regulations 1994. Regulation 2.07(5) allows the Minister to specify, by legislative instrument, approved forms and the manner of making applications for visas. Regulation 5.19 deals specifically with employer nomination applications. The instrument also interacts with Schedule 1 to the Regulations, items 1114B and 1114C, which set out the requirements for visa applications for Class EN and Class RN visas. The instrument specifies the forms and manner for those items, thus filling the gap left by the repealed 2015 instrument.

The instrument does not affect the substantive eligibility criteria for the visas. Those remain in the Migration Regulations: criteria relating to age, skills assessment, English language, employer nomination, and the like. Nor does it affect the related sponsorship obligations under the Migration Act (such as the obligation to meet training benchmarks or the terms of a sponsorship agreement). It is purely procedural. However, the procedural gate is critical: an applicant who cannot lodge a valid application because of form or manner issues cannot even begin the merit assessment. Thus, the instrument has a de facto substantive effect for those who are unable to satisfy the lodgement requirements.

The instrument’s manual lodgement pathway interacts with the concept of “unlawful non‑citizen” under section 14 of the Migration Act. An applicant who becomes unlawful because they cannot lodge on time has no special protection; they may be detained under section 189. The instrument’s manual path is designed to avoid that, but only if the Department acts. Similarly, the reference to turning 45 interacts with the age criterion for subclass 186 and 187 visas. Many skilled visa classes require the applicant to be under 45 at the time of application. If a person turns 45 while the system is down and no manual authorisation is issued, they permanently lose eligibility. The instrument does not provide any age waiver or extension.

The instrument also implicitly interacts with the Electronic Transactions Act 1999 and related Commonwealth electronic lodgement frameworks. The Department’s internet application system is a form of electronic communication. The instrument’s fallback to email confirms that email is an acceptable form of electronic lodgement for the limited cases authorised, but only if the applicant strictly follows the prescribed protocol (copy of authorisation, end‑of‑day deadline). Note that the instrument does not require the applicant to have a digital signature or specific encryption; it relies on the authorisation email as a form of authentication.

The repeal of IMMI 15/032 means that any earlier specifications of forms or lodgement manners for these visas are no longer in force. If anyone has continued to use the old form numbers after 7 December 2024, their application would be invalid. Practitioners and employers must update their internal forms and checklists.

This instrument is a new legislative instrument made on 6 December 2024 and commencing on 7 December 2024. It repeals the Migration Regulations 1994 - Specification of Arrangements for Employer Nomination and Regional Employer Nomination Skilled Visas 2015 (IMMI 15/032) in its entirety. That earlier instrument had been in force for approximately nine years. The instrument before us does not contain any transitional provisions, so the repeal takes full effect from commencement. There is no amendment history for this instrument itself because it is the initial version. Future amendments may occur, but none are recorded in the source. The instrument is made by the Assistant Minister for Citizenship and Multicultural Affairs, Julian Hill, and is authorised under the Regulations. The repeal of the 2015 instrument is a clean break: the new instrument is not an amendment but a replacement. The earlier instrument was titled “Specification of Arrangements for Employer Nomination and Regional Employer Nomination Skilled Visas 2015” and dealt with the same subject matter. The new instrument updates the form numbers (e.g., from previous forms to 1395 and 1408) and introduces the manual lodgement contingency, which was not present in the 2015 instrument. The recitals indicate the instrument is made under subregulation 2.07(5) and regulation 5.19, consistent with the previous instrument’s authority.

This instrument commenced only very recently (7 December 2024), and the source text does not mention any litigation. As a result, there is no recorded judicial consideration of its provisions. However, the predecessor instrument (IMMI 15/032) may have been considered in cases involving the validity of applications, but the source does not reference any such cases. Given the procedural nature of the instrument, litigation might arise if the Department refuses to accept an application on the basis that it was not in the approved form or manner, or if the Department fails to issue a manual lodgement authorisation when the circumstances are met. Potential grounds for judicial review include jurisdictional error, unreasonableness, or failure to comply with the instrument itself. But as of the date of drafting, no cases exist. The instrument is not yet the subject of any reported Administrative Appeals Tribunal or Federal Circuit and Family Court decisions. The absence of litigation history is unsurprising: even if challenges were brought, they would take time to be decided.

Several features of this instrument are highly likely to catch out applicants and practitioners.

First, the manual lodgement pathway is not a general fallback; it is an emergency override that requires the Department to send a specific authorisation email from a dedicated address. The applicant cannot initiate it. If the applicant realises the internet system is down, they cannot simply email their application; they must wait for the Department to identify the problem and send an authorisation. The instrument does not say that the Department will send such authorisations automatically or promptly. If the Department takes days to identify a problem, an applicant facing a same‑day deadline may miss it. The instrument also does not oblige the Department to give the authorisation even when the circumstances exist. This creates a one‑sided dependency.

Second, the time limit is extremely tight: the completed form and the copy of the authorising email must be sent “by the end of the day on which the authorisation was given” (AEST or AEDST). If an authorisation is emailed to an applicant at, say, 4:00 pm on a Friday, the applicant must have the form ready and email it back by midnight that same day. If the applicant is not at their computer, or if the email goes to spam, or if the attachment is too large, the deadline is missed. There is no provision for extension. This is a recipe for procedural failure.

Third, for Class RN visa applications, there is no manual lodgement option at all. If the Department’s system is down permanently or for an extended period, a subclass 187 applicant has no way to lodge a valid application. The instrument effectively assumes that internet will always be available for this visa class, which may be unrealistic. Applicants looking for permanent solutions to system failures are left without any alternative.

Fourth, the instrument’s specification for nominations and visa applications uses distinct but overlapping circumstances. For nominations (section 7), the urgent circumstance includes the applicant becoming an unlawful non‑citizen, no longer holding a bridging visa mentioned in regulation 5.19(5)(a), or turning 45. For visa applications (section 9), the urgent circumstance includes becoming an unlawful non‑citizen or turning 45, but not the loss of a bridging visa. This asymmetry means that a visa applicant who will lose their bridging visa may not qualify for the manual lodgement of the visa application, even though the nomination for the same employer might qualify. This inconsistency could cause a situation where the nomination is lodged manually but the visa application cannot be, leading to a mismatch.

Fifth, the requirement to include in the email “a copy of the authorising email sent by the Department that includes the name and position number of the officer who sent the authorising email” imposes a verification step. If the applicant fails to include that copy, the application may be invalid. The authorisation email itself must contain the officer’s name and position number; if the Department sends an email without that information, the applicant cannot satisfy the requirement. The instrument does not deal with that case.

Sixth, the concept of “more likely than not” in subsection 7(3)(d) applies to the rectification problem. This is a civil standard, but it is the Department’s own assessment. There is no external check. An applicant has no way to challenge that assessment, and if the Department determines the problem will be fixed by the next business day (even if that turns out to be wrong), no authorisation is issued. The applicant bears the risk of the Department’s error.

Seventh, the instrument does not address what happens if the Department’s internet systems are down but the problem is not identified by the Department (e.g., a DDoS attack that the Department does not immediately notice). In that case, no authorisation can be issued, and no manual lodgement is possible, even though the applicant is unable to apply.

Eighth, the instrument does not specify how an applicant can prove they attempted to lodge via the internet but could not. If there is no authorisation, the applicant cannot later argue that they tried but the system was down; the form and manner requirements are strict. The only safe course is to have a paper trail of attempted lodgement and a prompt complaint to the Department, but even then, there is no guarantee of authorisation.

Compliance with this instrument requires careful attention to form numbers, lodgement method, and, if the manual path becomes available, extremely tight deadlines.

For employers making a nomination application for a subclass 186 or 187 visa: use only the Department’s online portal and complete form 1395 (Internet). This is the standard method. Do not use any older form numbers; the 2015 instrument is repealed. Ensure that the nomination application is lodged as an Internet application. If the Department’s online system is working, there is no alternative.

If the Department’s online system is not working, and you believe the circumstances in section 7(3) or 7(4) are met, do not attempt to lodge by email unless and until you receive an authorisation email from e186.Manual.Lodgement@homeaffairs.gov.au. The instrument does not stipulate how an employer or agent should request such an authorisation; you may need to contact the Department directly via its usual service channels to alert them to the system problem and the urgency. However, note that the instrument places the onus on the Department to identify the problem. As a precaution, if you encounter a system outage, document the date, time, and nature of the problem (screenshot error messages, note transaction ID). Contact the Department’s Skilled Visa Processing area or the relevant business line, and explain that you require a manual lodgement authorisation under the instrument. Provide evidence of the urgency (e.g., the applicant’s visa expiry date or date of birth). If the Department then sends you an authorisation email, you must act immediately. Complete the nomination using form 1395 (the version provided with the email - likely a PDF or fillable document). Email the completed form to e186.Manual.Lodgement@homeaffairs.gov.au, and attach a copy of the authorisation email that includes the officer’s name and position number. The entire submission must be sent by the end of the same day the authorisation was given, in AEST or AEDST. Check the time zone: if you are in a different time zone, convert accurately. After sending, keep a copy of your sent email and any delivery confirmation. Monitor for an acknowledgement from the Department, but note that the instrument does not require acknowledgement.

For visa applicants for a Subclass 186 visa (Class EN): the same pattern applies. Use form 1408 (Internet) via the portal. If the system fails and you meet the urgency criteria, seek an authorisation from the Department (again, no formal request process is specified; you must rely on the Department to initiate). If you receive an authorisation, send the completed form 1408 and a copy of the authorisation email to the same address by end of the day.

For visa applicants for a Subclass 187 visa (Class RN): compliance is simpler but riskier. You must use form 1408 (Internet) and lodge via the internet. There is no manual fallback. If the system is down, you have no lawful way to make the application. Your only option is to wait until the system is restored. If the outage is prolonged and you face an expiry of eligibility, you may need to explore alternative visa options or seek ministerial intervention (which is beyond this instrument). Therefore, to minimise risk, do not leave lodgement to the last day. Lodge well before deadlines to account for system failures.

General compliance recommendations: update your internal systems and checklists to reflect the new form numbers. Ensure that staff responsible for lodgement are aware that the manual lodgement option exists only for subclass 186 nominations and Class EN visa applications, and only with a valid authorisation. Do not assume that email lodgement is a general alternative; it is not. Always attempt internet lodgement first. If you encounter a system problem, escalate to the Department immediately and request a manual lodgement authorisation. Because the instrument does not prescribe a process for requesting, be prepared to cite the specific legislative provision and the urgency factors. Keep detailed records of all communications with the Department, including the time you reported the problem and any response. If the Department fails to send an authorisation and your applicant’s immigration status is adversely affected, those records may be used in a later review or judicial review application to argue that the Department failed to exercise its power reasonably under the instrument.