Migration (Arrangements for Protection, Refugee and Humanitarian Visas) Instrument (LIN 20/169) 2020

The instrument rests on several defined or implicit concepts. Internet application is defined by reference to regulation 1.03 of the Migration Regulations 1994, meaning an application made through a Department-approved online system. For the three protection-type visas (Classes XA, XD and XE) the prescribed form is form 866 (Internet), and it must be submitted as an internet application. The same form is used for both protection and temporary protection, despite the different visa criteria. Written notice is defined in section 4 as a notice in writing from the Department notifying a person that they can make a visa application, including instructions about how to return the form. This is the sole gateway for paper lodgement: if the primary internet route is “not possible”, the applicant must obtain such written notice before using a paper form. The term “cannot be made” is not defined, leaving interpretive room. The instrument also distinguishes among kinds of applicants within the Refugee and Humanitarian (Class XB) visa. The table in section 8 has four rows: item 1 covers applicants proposed via approved form 681; item 1A covers applicants proposed via approved form 1417; item 2 covers applicants covered by subitem 1402(3B) of Schedule 1 to the Regulations who have received written notice; item 3 covers any other applicant. Each row prescribes different form combinations (842 and 681 Internet; 842 and 1417 paper; 842 alone) and different places and manners (Internet, post to GPO Box 9984 Sydney, an online portal, email, or overseas diplomatic offices). This fragmentation means that two applicants for the same visa subclass may have completely different lodgement obligations depending on how their entry was proposed. The concept of approved form is critical: the instrument references forms that are approved under regulation 2.07 of the Migration Regulations. Those forms themselves contain questions and declarations that may be updated independently of this instrument, so compliance requires using the current version of the form as published on the Department’s website. The instrument does not stipulate any fee; fee arrangements are set elsewhere in the Regulations.

The primary affected persons are non-citizens seeking to apply for a protection or humanitarian visa from inside or outside Australia. This includes asylum seekers who have arrived in Australia without a valid visa (who typically apply for Class XA or XD/XE visas), refugees referred by the United Nations High Commissioner for Refugees (Class XB), and persons proposed for humanitarian entry by an Australian citizen, permanent resident or organisation (Class XB items 1 and 1A). The instrument imposes a mandatory internet lodgement rule that disproportionately affects applicants with limited digital literacy, no reliable internet access, or who are held in immigration detention or regional processing centres where internet access may be restricted or monitored. While the written-notice safety valve exists, it is entirely discretionary; the Department has no duty to issue such notice, and the instrument creates no right to demand one. This gives the Department significant operational control over who may lodge on paper and when. The instrument also affects migration agents and lawyers who assist applicants; they must be familiar with the correct form and portal for each visa class, and must monitor whether the Department has updated the online forms or URLs. The Sydney GPO Box 9984 address is used for paper applications for protection visas; this centralised mail processing creates a single point of failure and may delay receipt of applications from remote or interstate locations. For Class XB item 1A applicants, paper applications must be posted to the same Sydney box or submitted via a specific online portal (homeaffairs.gov.au/humvisaapplication); this portal is separate from the internet application system used for other classes. The instrument directly affects postal services and courier companies indirectly by reducing the volume of paper applications over time, as the 2025 amendments expand internet lodgement. For Departmental officers, the instrument simplifies processing by channelling most applications through a single digital intake system, but it also obliges them to maintain the written-notice process and to verify that paper applications are accompanied by a valid written notice. Finally, overseas diplomatic, consular or migration offices are relevant only for item 3 of the Class XB table, where an applicant may make a paper application at such an office outside Australia , a shrinking option as internet lodgement expands.

The instrument imposes a clear duty on applicants to use the prescribed form and lodgement method for the relevant visa class and applicant category. For Protection (XA), Temporary Protection (XD) and Safe Haven Enterprise (XE) visas, the duty is to use form 866 (Internet) as an internet application. For Refugee and Humanitarian (XB) visas, the duty depends on the item row in the table: item 1 applicants must use forms 842 (Internet) and 681 (Internet) as an internet application; item 1A applicants must use forms 842 and 1417 posted or via portal; item 2 applicants must follow the instructions in a written notice; item 3 applicants must use form 842 (Internet) or, if authorised, form 842 via post, email or overseas office. The duty is strict: failure to comply with the exact form, place and manner renders the application invalid under section 46 of the Migration Act. There is no statutory right to choose a paper method; paper is available only if the Department first issues a written notice. The instrument confers a right on the Department to decide whether to issue a written notice and to set the instructions within it. The applicant has no right to a written notice on demand; the Department can refuse without stated reasons, and such a decision would likely be non-statutory and not reviewable by the Administrative Appeals Tribunal. Where a written notice is issued, the applicant has a right to rely on those instructions as satisfying the prescribed manner, even if those instructions deviate from the default internet rule. The instrument also creates an implied right to use the designated online portal for Class XB item 1 and for the protection visas; if the portal is down, the applicant may be unable to lodge and must seek written notice , but the instrument does not require the Department to provide an alternative in a system outage. The instrument does not impose any duty on the Department to acknowledge receipt of an internet application, paper application, or emailed application; practical compliance requires that applicants retain proof of lodgement (e.g., portal confirmation screen, signed postal receipt, email delivery receipt). There is no duty on the Department to notify an applicant that they have used the wrong form or wrong method; the application is simply invalid and no further processing occurs.

The instrument itself does not create any criminal or civil penalties. Its enforcement mechanism operates through the validity of the visa application. Under section 46 of the Migration Act 1958, an application for a visa is not a valid application unless it is made in the prescribed manner. Because this instrument prescribes the manner, any application that does not comply with sections 7-10 is invalid ab initio. The practical consequence for the applicant is that the Department will treat the application as never having been made, and no visa can be granted. There is no right of merits review of the invalidity decision itself; the refusal of a visa based on an invalid application may be reviewable, but the threshold question of invalidity is jurisdictional. Additionally, if an applicant knowingly provides false information in the application form (e.g., claiming an inability to lodge online in order to obtain a written notice), they may face liability under section 234 of the Migration Act for providing false or misleading information, which carries a penalty of up to 10 years imprisonment. For migration agents, lodging an application in the wrong manner may constitute a failure to provide competent assistance, potentially leading to disciplinary action by the Office of the Migration Agents Registration Authority. For the Department, failure to process an otherwise valid application due to an administrative misinterpretation of the instrument could give rise to judicial review under the Administrative Decisions (Judicial Review) Act 1977. The instrument does not provide any internal avenue for the Department to rectify an invalid application (e.g., by requesting re-lodgement in the correct manner); the applicant must start again. The 2023 amendments removed previous provisions that allowed paper lodgement without prior written notice in certain circumstances, effectively narrowing the paths to a valid application and increasing the risk of invalidity for applicants who miss the internet-only rule.

This instrument is a creature of the Migration Regulations 1994, which in turn are made under the Migration Act 1958. The instrument’s authority flows from subregulation 2.07(5) (which allows the Minister to determine approved forms) and items 1401-1404 of Schedule 1 to the Regulations (which set out the application requirements for each visa class, including that the application must be made in the manner specified by a legislative instrument). The instrument fills in the details left open by those provisions; it does not replace or override the Regulations. The Migration Act section 46(1)(a) requires a valid application to be made in the prescribed manner; this instrument constitutes that prescription. Consequently, if the instrument is invalid (e.g., because it exceeds the power in the Regulations), any application purportedly made under it is also invalid. The instrument also interacts with the Legislation Act 2003 as a legislative instrument that must be registered, tabled and subject to disallowance. Three provisions (former sections 2, 5 and 6) have been repealed by operation of the Legislation Act (sections 48C and 48D) , a statutory mechanism that automatically repeals certain commencement and transition provisions after a period. The instrument’s amendment history shows that the 2025 amendments expressly removed section 5, which had contained saving provisions for applications made before the instrument’s commencement; this repeal means that transitional protection for those earlier applications is no longer in force, though the saved applications themselves are presumably already processed or expired. The instrument also interacts with approved forms approved under regulation 2.07 of the Regulations; those forms are themselves legislative instruments (or not) and may be updated independently. The instrument does not interact with state or territory law; migration is a Commonwealth exclusive power.

The instrument has been amended six times since its original registration on 12 November 2020. The original instrument (F2020L01420) commenced on 13 November 2020 and contained sections 5 (saving provisions), 7-10 for the four visa classes, and definitions. In 2021, the Migration (Arrangements for Protection, Refugee and Humanitarian visas) Amendment Instrument (LIN 21/079) amended section 4 (adding or modifying definitions) and made minor amendments to sections 7, 8, 9 and 10. In 2022, the Migration (Arrangements for Refugee and Humanitarian (Class XB) visas) Amendment Instrument (LIN 22/060) amended only section 8, presumably to adjust the table for Class XB applicants. The most significant amendments occurred in 2023. The first 2023 amendment (LIN 23/013) replaced sections 9 and 10 (Temporary Protection and Safe Haven Enterprise visas) with new versions. The second 2023 amendment (LIN 23/049) replaced section 7 (Protection visa) and further amended sections 9 and 10. These 2023 amendments removed the earlier exceptions that allowed paper lodgement without written notice for certain categories and made internet lodgement the primary (almost exclusive) method. In 2025, two amendments were made. The first (F2025L00750) amended section 8 to expand internet lodgement for some Class XB applicants. The second (F2025L01435) further amended sections 4 and 8, and repealed section 5 entirely. The repeal of section 5 removed the saving provisions that had protected applications made before the instrument’s commencement. The amendments also resulted in the automatic repeal of former sections 2 and 6 by operation of the Legislation Act 2003 (sections 48C and 48D). The instrument is now at Compilation No. 6, with an uncommenced amendment (not shown) affecting uncommenced provisions in the endnotes. This amendment history reveals a trend towards tightening the lodgement rules: reducing paper alternatives, eliminating transitional protections, and centralising submission via internet portals. Each amendment increased the Department’s discretion to grant paper exceptions and reduced applicants’ ability to lodge by alternative means without prior departmental consent.

The source text of the instrument does not cite any court or tribunal decisions. There is no indication within the instrument itself that its provisions have been judicially considered. Given the instrument’s nature as a procedural legislative instrument, litigation concerning its provisions would most likely arise in the context of judicial review of a decision to refuse a visa on the ground that the application was made in the wrong manner. The key legal question would be whether the instrument is validly made , i.e., whether it falls within the scope of the power granted by subregulation 2.07(5) and the relevant Schedule 1 items. A challenge could also focus on the definition of “cannot be made” in the exceptions: is that phrase to be interpreted objectively (e.g., technical impossibility) or subjectively (e.g., unreasonable hardship or lack of digital skills)? The instrument gives no guidance. Another potential litigable issue is whether the Department’s failure to issue a written notice is reviewable. Because the instrument creates no duty to issue notice, and the decision is discretionary, an applicant might argue that the refusal to issue a notice is unreasonable or procedurally unfair, but this would be difficult given the broad discretionary language. The Administrative Appeals Tribunal has no jurisdiction to review the refusal to issue a written notice because it is not a reviewable decision under the Migration Act. The Federal Court could hear an application under the ADJR Act or section 39B of the Judiciary Act, but the chances of success are limited because the decision is likely characterised as a preliminary procedural step rather than a decision under the Act. There have been no published judgments involving this specific instrument as of the compilation date. Practitioners should be aware that any litigation would turn on the precise wording of the instrument and the Regulations, and that analogous disputes under earlier instruments (e.g., the 2015 version of the instrument) might provide persuasive but not binding guidance.

Several traps arise from the instrument’s structure and language. The written-notice prerequisite is a double-edged sword: while it offers a path to paper lodgement, the applicant must have already attempted (or at least known they cannot) lodge online, and must have received the notice before making the paper application. It is not permissible to lodge paper first and later seek notice. The notice must be “in writing from the Department”; an oral instruction from an officer does not suffice. The Sydney GPO Box 9984 address is the only mailing address for protection visa paper applications; if an applicant posts the application to a different Departmental office, it is likely invalid. For Class XB item 1A, there are two possible paper methods (post to Sydney box or portal); using the wrong portal or email may invalidate the application. The email option for Class XB item 3 is only available if the Department has given written notice; it is not a stand-alone alternative. The online portal for Class XB items 1 and 1A (homeaffairs.gov.au/humvisaapplication) is separate from the internet application system for protection visas; an applicant cannot use the same portal for both. The instrument does not define “cannot be made”; this opens the door to arbitrary administrative discretion. An applicant who lacks internet due to detention, disability, or remoteness may be told they “can” apply online via a third party or public facility, and thus denied written notice. The repeal of section 5 means any transitional arrangements that once applied to applications made before 13 November 2020 are now gone; practitioners should verify that older applications are either finalised or still valid under the law as it stood at that time. The definition of “written notice” includes instructions about how to return the form; if the notice is missing those details, an applicant may be unable to comply and could be stuck in a loop of requesting more letters. The instrument does not specify a maximum response time; an applicant may wait indefinitely for a written notice. Postage must be “sufficient prepaid postage”; underpaid mail will likely be returned or lost, with no duty on the Department to notify. The internet application requirement applies even if the applicant is in immigration detention; detention centres may have restricted internet, but the Department may still refuse a written notice on the basis that the applicant can use a detention facility’s computer. The instrument does not allow for submission by fax or delivery in person (except at overseas offices for item 3). The 2025 amendments expanded internet lodgement for Class XB (item 1A), removing the previous paper-only option; any applicant in that category who cannot lodge online must now obtain written notice, a higher hurdle.

Compliance begins with correctly identifying the visa subclass and, for Class XB, the applicant category under the table in section 8. For Protection (Class XA), Temporary Protection (Class XD) and Safe Haven Enterprise (Class XE) visas, the required act is simple: complete form 866 (Internet) and submit it as an internet application via the Department’s online lodgement system (likely the ImmiAccount portal). Do not mail a paper form 866 unless the Department has first issued a written notice authorising that method. If a paper application is necessary, the written notice must be obtained in advance, and the application must be posted with sufficient prepaid postage to “Protection Visas, Department of Home Affairs, GPO Box 9984, SYDNEY NSW 2001”. Keep a copy of the written notice and proof of postage. For Refugee and Humanitarian (Class XB) visas, identify which item in the table applies. For item 1 (applicant proposed via approved form 681), complete form 842 (Internet) and form 681 (Internet) and submit as an internet application. If that is impossible, seek written notice; if notice is given, use forms 842 and 681 and follow the notice’s instructions (post to Sydney box or via the humanitarian portal). For item 1A (applicant proposed via approved form 1417), complete forms 842 and 1417 and either post to the Sydney box or use the humanitarian portal. The 2025 amendments require internet lodgement for this category unless written notice is given. For item 2 (applicant covered by subitem 1402(3B) who has received written notice), follow the instructions in that notice exactly; the prescribed method is whatever the notice says. For item 3 (any other applicant), use form 842 (Internet) as an internet application. If internet is impossible, obtain written notice; if notice given, use form 842 and either post to a Departmental office, email to the Department, or attend an overseas diplomatic/consular/migration office. Always check the current versions of forms on the Department’s website, as forms are updated independently. Retain a confirmation screen or receipt from the internet application, and for paper applications, use registered post and keep the tracking number. If in any doubt about eligibility for written notice, contact the Department in writing and request a notice, explaining why internet lodgement is not possible. The instrument does not create an obligation on the Department to respond, so a failure to respond may be treated as a de facto refusal. Practitioners should advise clients to lodge as early as possible, as last-minute attempts may fail if the online system is down or if a paper application goes missing. Do not assume that any Departmental office will accept a paper application without prior written notice; such an application is likely invalid. Finally, monitor amendments to this instrument; the legislation history shows changes every 12-18 months, and the trend is towards further restriction of paper options.