Migration (Arrangements for Resident Return visa applications) Instrument (LIN 22/019) 2022

ImmiAccount. Defined in section 3 as the interactive portal for online services available through the Department’s website at https://immi.homeaffairs.gov.au. It is the mandatory method for making a Return (Residence) (Class BB) visa application under section 5(1), unless the Department issues a written notice allowing an alternative. ImmiAccount is not listed as an option for Special Eligibility (Class CB) or Resident Return (Temporary) (Class TP) applications.

Written notice. Defined in section 3 as an email from the Department inviting a person to make an application using a form and in a manner other than an Internet form through ImmiAccount. This concept appears only in section 5(2) for Class BB visas. The written notice is a precondition for using the email alternative. It must be attached to the application, and the application must be received within two calendar days of the Department sending the notice. The notice itself is not defined further; its issuance lies within Departmental discretion.

Forms. The instrument specifies three form numbers: form 47SV for Special Eligibility (Class CB) visas; form 1085E (presumably an electronic version) for Return (Residence) (Class BB) visas when lodged via ImmiAccount; and form 1085 (paper form) for the Class BB alternative method and for both methods of Resident Return (Temporary) (Class TP) visas. The instrument does not reproduce the forms; they are prescribed instruments under the Regulations. Applicants must obtain the correct form from the Department’s website or other sources.

Lodgement methods. For Class CB: posting only to a specified Sydney GPO box. For Class BB: primarily ImmiAccount (online); alternatively, email to residentsreturn@homeaffairs.gov.au with attachment of the written notice. For Class TP: primarily in person at a diplomatic, consular, or immigration office (Australian missions overseas or onshore offices); alternatively, posting to the Sydney GPO box. The instrument uses mandatory language (“must be made”) indicating that deviation from the prescribed method renders the application invalid for the purposes of Schedule 1 to the Regulations.

Addresses. Two postal addresses are used: one for Subclass 151 visa applications (GPO Box 9984, Sydney NSW 2001) and one for Resident Return Visa Applications (same box but with a different line). The instrument requires “sufficient prepaid postage” - the applicant bears the risk of insufficient postage and consequent non-delivery.

Time limit for Class BB email alternative. The application must be received by 11:59pm (AEST or AEDST as applicable in the place where the email is received) two calendar days after the Department sends the written notice. This is a short window. “Calendar days” includes weekends and public holidays. The time zone is that of the place of receipt, not the applicant’s location.

Visa classes and subclasses. The instrument references subitems of Schedule 1 to the Migration Regulations 1994: subitem 1118A(1) and paragraph 1118A(3)(a) for Class CB (Subclass 151); subitem 1128(1) and paragraph 1128(3)(a) for Class BB (Subclass 155/157); subitem 1216(1) and paragraphs 1216(3)(a) and 1216(3B)(a) for Class TP (Subclass 159). The instrument does not define the eligibility criteria or visa conditions; it solely deals with application arrangements.

This instrument directly affects individuals who are seeking to apply for one of three specific resident return visa subclasses: Special Eligibility (Subclass 151), Return (Residence) (Subclass 155/157), and Resident Return (Temporary) (Subclass 159). Typically, these applicants are current or former Australian permanent residents who have been absent from Australia for a period and need a visa to travel to or remain in Australia. The instrument does not alter eligibility criteria; it imposes procedural requirements that must be satisfied for the application to be valid.

The Department of Home Affairs is affected as the administering body. Its officers must accept applications that comply with the prescribed arrangements and may reject those that do not. The Department also controls the issuance of written notices under section 5(2), which is a discretionary tool to facilitate applications from persons who cannot use ImmiAccount.

Diplomatic, consular, and immigration offices maintained by the Commonwealth of Australia are affected under section 6(1) as places of lodgement for Class TP applications. Staff at those posts must accept form 1085 applications in person. This requirement imposes an operational obligation on overseas missions.

Legal practitioners and migration agents who assist applicants must be familiar with these arrangements to ensure their clients’ applications are lodged correctly. The instrument is short, but the time limit for the Class BB email alternative is a critical detail that practitioners must monitor.

Indirectly, the instrument affects any person who receives a written notice from the Department. That person becomes eligible to use the email alternative, but only if they comply strictly with the conditions: attaching the notice, using form 1085, and sending it within two calendar days. Failure to do so means the application is not made in the prescribed manner and may be considered invalid.

The instrument does not affect holders of other visa classes, nor does it affect Australian citizens or non-permanent residents. It applies only to the three named visa classes.

Duty to use the prescribed form and method. The primary duty imposed by the instrument is on the applicant. For each visa class, the applicant must use exactly the form specified and the method of lodgement prescribed. For Class CB visas (section 4), the duty is to use form 47SV and post it to the Sydney address. For Class BB visas (section 5(1)), the duty is to use form 1085E through ImmiAccount. For Class TP visas (section 6(1)), the duty is to use form 1085 and lodge it at a diplomatic, consular or immigration office. There is no discretion for the applicant to choose an alternative method unless a specific exception applies.

Right to use an alternative method (Class BB). The instrument provides a limited right under section 5(2): if the applicant cannot make the application via ImmiAccount, and the Department has given a written notice, the applicant may make the application using form 1085 by email. This is not a right that can be claimed independently; it is contingent on the Department first issuing the written notice. The applicant also has the duty to attach that notice and to ensure the application is received within the two-calendar-day window.

Right to alternative method (Class TP). Section 6(2) provides a postal alternative for Class TP applications. This alternative is not contingent on any Departmental notice; it is an alternative option available to any applicant. However, it still requires use of form 1085 and posting to the Sydney address with sufficient prepaid postage.

Department’s duty to issue written notices (discretionary). The instrument does not impose a duty on the Department to issue written notices; it grants the Department the power to do so. The definition of “written notice” implies that the Department may invite a person to apply outside ImmiAccount. The Department likely issues such notices in cases of technical difficulties or for applicants with special circumstances, but the instrument gives no criteria.

Duty of Departmental officers to accept valid applications. While not explicit in the instrument, the legal effect of complying with the prescribed arrangements is that the application is deemed to have been validly made under the Regulations. Conversely, if the applicant does not comply, the Department may refuse to accept the application. The instrument therefore creates an implied duty on the Department to process applications that are made in the prescribed manner.

No right to apply by any other method. The instrument is exhaustive: it does not permit oral applications, applications by fax, or applications using any other form. An applicant who sends the wrong form or uses the wrong channel does not have a valid application. The instrument provides no waiver mechanism.

The instrument itself does not create any penalty provisions. It is a procedural instrument that specifies application arrangements; it does not impose fines, imprisonment, or infringement notices. However, non-compliance has a direct and serious consequence: the application will not be considered as having been validly made under the relevant subitem of Schedule 1 to the Migration Regulations 1994. This means the Department is likely to refuse to process the application, or may treat it as not having been made at all. The applicant may lose the opportunity to apply, may need to re-lodge, and may miss visa grant timelines.

The underlying Migration Act 1958 and the Migration Regulations contain offence provisions for providing false information or for making bogus applications, but those are not engaged by this instrument alone. For example, if an applicant uses the wrong form or method, the application may be invalid, but that is not itself an offence.

Enforcement of the instrument is primarily by the Department through administrative checks. When an application is received, the Department will verify that it was made in the correct form and through the correct channel. If not, the officer will typically return the application or advise the applicant to re-lodge correctly. There is no appeal mechanism within the instrument for a decision that an application was not made in the prescribed manner; such a decision may be reviewable under the Migration Act (e.g., under Part 5 or Part 7), but that is external to this instrument.

The instrument carries the force of law as a legislative instrument registered under the Legislation Act 2003. Non-compliance by an applicant does not attract criminal sanctions, but it renders the applicant unable to proceed with the visa application. In practice, the most severe “penalty” is the loss of the ability to apply, which could have significant migration consequences if the applicant is in Australia unlawfully or if deadlines are missed.

The Departmental officers who fail to correctly apply the instrument may be subject to internal administrative action, but the instrument does not address that.

This instrument is made under the Migration Regulations 1994, which in turn are made under the Migration Act 1958. Specifically, sections 4, 5, and 6 refer to subitems and paragraphs of Schedule 1 to the Regulations. Those provisions set out the overarching requirement that applications for certain visas must be made in a way specified in a written instrument. This instrument is that written instrument. Therefore, it is subordinate to the Regulations and can be amended or revoked by further legislative instruments.

The instrument interacts with the Legislation Act 2003. As a legislative instrument, it is subject to registration, tabling, and disallowance. The table of instruments shows that section 2 (commencement) and section 7 (repeal) were automatically repealed by operation of sections 48D and 48C of the Legislation Act 2003 respectively, because those provisions are standard provisions that expire. This demonstrates that the instrument is part of a broader legislative framework that includes automatic repeal mechanisms.

The instrument also interacts with the provisions of the Migration Act that govern visa application validity. For example, section 46 of the Migration Act requires applications to be made in the prescribed manner. This instrument helps define that prescribed manner for the visa classes it covers. Without it, the application arrangements would be unspecified and applicants might not have a clear method.

There may be interaction with the Migration (IMMI 16/059) form approval instruments, which approve the actual forms (47SV, 1085E, 1085) for use. This instrument does not itself approve the forms; it references them as existing forms. Practitioners must ensure they are using the current version of each form as approved by the Department.

Interaction with other procedural instruments: there are instruments for other visa classes, but this one is specific to resident return visas. No conflict is evident.

The instrument also interacts with the Electronic Transactions Act 1999 to the extent that online lodgement via ImmiAccount is permissible. The instrument implicitly recognises electronic communication by allowing email and online portals.

The original instrument was the Migration (Arrangements for Resident Return visa applications) Instrument (LIN 22/019) 2022. It was registered on the Federal Register of Legislation on 1 April 2022 as F2022L00490 and commenced on 2 April 2022. The original version contained sections 1 through 7.

The instrument was amended by the Migration (Arrangements for Resident Return visa applications) Amendment Instrument (LIN 23/014) 2023, registered on 3 March 2023 as F2023L00195 and commencing on 4 March 2023. The amendment substituted section 4 in its entirety. The original section 4 may have contained different application arrangements for Special Eligibility (Class CB) visas; the new version presumably updated the form or address. The compilation notes that the amendment was taken into account.

Additionally, two sections were repealed by operation of law under the Legislation Act 2003. Section 2 (commencement) was automatically repealed on the day after the instrument commenced, under section 48D of the Legislation Act. Section 7 (which was a repeal provision) was automatically repealed under section 48C of the Legislation Act, as it had no further effect. These repeals are standard for legislative instruments and do not affect the substantive operation of the instrument.

The compilation was prepared by the Department of Home Affairs on 15 February 2023, with a compilation date of 4 March 2023. The compilation number is 1, indicating this is the first compilation incorporating the amendment. The table of instruments and table of amendments are set out in the instrument and show the history clearly. The instrument is currently in force as at the compilation date.

There are no other amendments recorded. The instrument is relatively new and has had only one substantive amendment (the substitution of s 4). The amendment instrument LIN 23/014 does not contain any application, saving, or transitional provisions, so the new section 4 applies to all applications made on or after 4 March 2023, regardless of when the application right arose.

The instrument itself does not refer to any litigation. The deep dive cannot invent cases. As a procedural instrument specifying application methods, it is unlikely to have been the subject of direct judicial review. Challenges to refusals of resident return visas may have occurred on grounds related to the validity of applications, and in those challenges, the proper interpretation of this instrument could be at issue. However, the instrument is relatively recent (commenced April 2022) and has been amended once. No appellate decisions citing this specific legislative instrument are known to the author (and are not provided in the source).

Practitioners should be aware that any litigation would likely arise in the context of a refusal of a visa application where the Department found that the application was not made in accordance with the prescribed arrangements. The Administrative Appeals Tribunal (Migration and Refugee Division) or the Federal Circuit and Family Court of Australia may have considered arguments about whether an application was properly made under this instrument. For example, an applicant might argue that their emailed application should be accepted even though they did not receive a written notice, or that the two-calendar-day time limit should be extended.

Without specific case references, we note that the courts generally interpret procedural requirements strictly in migration law, given the wording of the Migration Act. The instrument uses mandatory language, so there is a high likelihood that non-compliance is fatal. However, the instrument also provides alternative methods, which may be interpreted as providing flexibility when the primary method is unavailable.

The compilation notes do not include any annotation of litigation. It is possible that the instrument has not yet been litigated. Legal researchers searching for cases should use the Federal Register of Legislation and court databases with the instrument number F2022L00490 or LIN 22/019.

Two-calendar-day deadline for Class BB email alternative. The window under section 5(2) is extremely tight: the application must be received by 11:59pm (AEST/AEDST) two calendar days after the Department sends the written notice. This includes weekends and public holidays. If the notice is sent on a Friday at 5pm, the deadline is 11:59pm Sunday (two calendar days later). This may catch applicants off guard, especially if they expect business days. Also, the time zone is that of the place where the email is received (i.e., the Department’s email server), not the applicant’s location. If the Department is in Canberra (AEST), and the applicant is in Western Australia (AWST, 2 hours behind), the deadline effectively becomes 1:59am AWST the next day, risking confusion.

Written notice must be attached. Under section 5(2)(b), the written notice must be attached to the application. If the applicant forgets to attach the email, the application does not comply. The Department may reject it even if the applicant otherwise qualifies. The notice is defined as an email from the Department; presumably the applicant should forward that email or attach a copy. The instrument does not specify whether a screen shot or print is acceptable, but “attached” suggests a file attached to the email.

Form numbers are easily confused. The instrument uses form 1085E for BB applications via ImmiAccount, and form 1085 for BB alternative and for both TP methods. An applicant who mistakenly uses form 1085 when the primary method requires form 1085E may have an invalid application. Similarly, form 47SV is for Class CB only; using the wrong form is fatal.

Only one alternative for BB: email. There is no alternative method for BB applications other than the email option (subject to written notice). If an applicant cannot use ImmiAccount and does not have a written notice, they cannot lodge a valid BB application until they contact the Department to seek a notice. There is no postal option for BB. This contrasts with the other visa classes which have postal alternatives.

Postal methods require sufficient prepaid postage. Sections 4 and 6(2) require “sufficient prepaid postage”. If the applicant underpaid postage, the application may not be delivered to the Department, and the Department will not have received it. The applicant bears the risk of postage errors.

Class TP primary method: diplomatic/consular/immigration office. For Class TP, the primary method under subsection 6(1) is in-person lodgement at an Australian diplomatic, consular, or immigration office. This may be inconvenient for applicants who are not near such an office. While the postal alternative exists under subsection 6(2), the applicant must be aware that they can choose either method. The instrument does not require a reason; both are valid.

ImmiAccount definition. ImmiAccount is defined by reference to the Department’s website. If the website address changes, the definition remains effective as a reference to the portal. Applicants should ensure they are using the official website, not a third-party mirror.

AEST/AEDST time zone for email. The deadline references the time zone applicable where the email is received. This is likely the Department’s server location in Canberra. It is not the applicant’s local time, nor a standardised UTC time. At the changeover from AEST to AEDST, confusion may arise. Practitioners should always submit well before the deadline.

No saving provisions for the amendment. The amendment substituted section 4 without any transitional provisions. Applications made before 4 March 2023 would have been governed by the old section 4; any applications on or after that date must comply with the new section 4. The instrument does not specify whether the old form is still accepted if posted before the amendment but received after.

Special Eligibility (Class CB) visa (Subclass 151). Obtain form 47SV from the Department’s website or in paper. Complete it fully. Post the completed form with sufficient prepaid postage to: Subclass 151 Visa Application, Department of Home Affairs, GPO Box 9984, Sydney NSW 2001, Australia. No other method is accepted. Ensure the envelope is correctly addressed and that postage covers the weight and dimensions. Keep proof of postage.

Return (Residence) (Class BB) visa (Subclass 155/157). The primary method is to create or log into ImmiAccount and complete form 1085E online. Follow the prompts and submit. If you cannot use ImmiAccount (e.g., due to technical issues or disability), you must first contact the Department to request a written notice. The Department will consider issuing an email invitation to apply using form 1085. If you receive such a notice, attach it to an email addressed to residentsreturn@homeaffairs.gov.au. Use form 1085 (paper version) as the attachment or as the body of the email (the instrument says “using form 1085”, which likely means the form must be completed and sent; but it is prudent to attach a scanned copy). Ensure the email is sent and received by 11:59pm (AEST/AEDST) two calendar days after the Department sent the notice. Calendar days count all days including weekends. Check your time zone relative to Australian Eastern Standard/Daylight Time. Do not use this method without a written notice; any application sent by email without a notice will not be a valid application.

Resident Return (Temporary) (Class TP) visa (Subclass 159). Option 1: Lodge in person at an Australian diplomatic, consular, or immigration office. Contact the relevant office to confirm opening hours and whether an appointment is needed. Take form 1085 (completed) with you. Option 2: Post form 1085 with sufficient prepaid postage to: Resident Return Visa Application, Department of Home Affairs, GPO Box 9984, Sydney NSW 2001, Australia. Either method is valid; you may choose. There is no online method for this visa class.

General compliance tips. Always use the latest version of the form as approved by the Department. Check the Department’s website for any updates to this instrument or the forms. For any method, ensure you provide all required supporting documents as specified in the Regulations or in the form instructions (this instrument does not list supporting documents). If you are unsure which visa class to apply for, seek professional advice before lodging because using the wrong class may lead to an invalid application. If applying by post, consider using registered post or a courier that provides tracking. For email applications, request a read receipt or confirmation from the Department. Keep copies of all correspondence, including the written notice and the sent email. If you are applying for Class BB via ImmiAccount, ensure your account is active and that you can complete the process; if you encounter difficulties, contact the Department to request a written notice well before any deadline.