Migration (Class of Persons for Nil VAC—CCAMLR) Instrument (LIN 24/036) 2024

This instrument, the Migration (Class of Persons for Nil VAC,CCAMLR) Instrument (LIN 24/036) 2024 (the instrument), specifies certain classes of visa applicants for the purpose of having a nil visa application charge (VAC) under particular provisions of the Migration Regulations 1994 (Migration Regulations). The instrument is dated 1 May 2024 and is made by a delegate of the Minister (Alison Garrod, Assistant Secretary, Temporary Visas Branch) (contents and signature block). It comes into force on the day after it is registered (s 2).

Mechanically, the instrument performs three concrete specification functions under powers cited in the Migration Regulations (s 3):

• For sub-subparagraph 1231(2)(a)(iv)(A) of Schedule 1, it specifies that a CCAMLR applicant or a family member is a class of person for whom the VAC is nil in relation to a Subclass 400 (Temporary Work (Short Stay Specialist)) visa, all streams (s 5).
• For subparagraph 1236(2)(a)(iv) of Schedule 1, it specifies that a CCAMLR applicant or family member seeking to satisfy the primary criteria for a Subclass 600 (Visitor) visa in either the Business Visitor stream or the Tourist stream is a class of person for whom the VAC is nil (s 6).
• For subparagraph 1237(2)(a)(i) of Schedule 1, it specifies two classes for Subclass 408 (Temporary Activity) visas in the context of the Invited Participant in an event criterion: (a) a CCAMLR applicant or family member seeking to satisfy clause 408.219A on the basis of clause 408.221; and (b) a family member who is applying as the family member of a person who holds a subclass 408 visa and who, when applying, was in the class covered by paragraph (a) (s 7).

The instrument defines the relevant categories of person and terms used for these specifications (s 4). It also records two notes cross-referencing other legislative definitions: the visa application charge is defined in section 5 of the Migration Act 1958 (Note 1), and member of the family unit is defined in regulation 1.12 of the Migration Regulations 1994 (Note 2). The specification thus affects how the VAC is applied administratively to applicants who fall within the defined CCAMLR applicant categories and their family members, but it does not itself amend visa eligibility criteria in the Migration Regulations; rather, it identifies particular persons as those for whom the VAC is nil for the relevant statutory provisions cited.

In short, the instrument makes the VAC nil for certain persons with official business with the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and for their qualifying family members when applying for particular visa subclasses and streams, while leaving the underlying visa criteria and other charging or eligibility rules in the Migration Regulations and Migration Act intact.

The instrument relies on a small set of interlocking concepts that determine who benefits and when the VAC is set to nil. These concepts are stated directly in the instrument (s 4) and by cross-reference to other legislative provisions (Notes).

Principal defined terms

• CCAMLR: the Commission for the Conservation of Antarctic Marine Living Resources (s 4).
• CCAMLR applicant: an applicant for a visa who has official business with CCAMLR, including subsidiary bodies and the Scientific Committee, in one of the following roles: (a) a representative of a Party; (b) a staff member of CCAMLR; (c) an expert or consultant on missions for CCAMLR; or (d) an observer to CCAMLR (s 4).
• Expert: a person performing short-term or temporary projects on behalf of CCAMLR, including persons serving on the Scientific Committee or another committee, or participating in CCAMLR work or missions, whether remunerated or not, but not including staff members (s 4).
• Staff member: the Executive Secretary and persons appointed or recruited for full-time employment with CCAMLR and subject to its staff regulations, but excluding experts and locally recruited hourly-rate staff (s 4).
• Observer to CCAMLR: a person invited by CCAMLR or the Scientific Committee to attend meetings or subsidiary body meetings as a representative of an organisation (s 4).
• Family member: a person who is a member of the family unit of a person described in paragraphs (a) or (b) of the CCAMLR applicant definition (s 4); the instrument notes that the expression "member of the family unit" is defined in reg 1.12 of the Migration Regulations (Note 2).
• VAC and Migration Act cross-reference: the instrument notes the statutory definition of visa application charge in s 5 of the Migration Act 1958 (Note 1).

Operational interactions with visa subclasses and Regulation provisions

• Subclass 400 (Temporary Work (Short Stay Specialist)): the instrument specifies that a CCAMLR applicant or family member is the class of persons for whom the VAC is nil for the purposes of sub-subparagraph 1231(2)(a)(iv)(A) of Schedule 1 to the Migration Regulations, and this applies to all streams of the subclass (s 5).
• Subclass 600 (Visitor): the nil VAC specification applies only where the CCAMLR applicant or family member is seeking to satisfy the primary criteria for a subclass 600 visa in the Business Visitor stream or the Tourist stream (s 6). The instrument therefore links the VAC waiver to the applicant’s choice of stream and the primary criteria for that stream.

Direct beneficiaries

• CCAMLR applicants, as defined in s 4, are directly affected. That includes representatives of a Party to the CCAMLR Convention, CCAMLR staff members (subject to the staff-member definition and exclusions), experts or consultants on missions for CCAMLR, and observers invited by CCAMLR or the Scientific Committee (s 4; ss 5-7).
• Family members of those CCAMLR applicants are also directly affected, subject to the family member meaning set out in s 4 and the cross-reference to regulation 1.12 (Note 2). The instrument explicitly treats family members alongside principal CCAMLR applicants for the purpose of nil VAC in ss 5-7.

Visa subclasses and streams affected

• Subclass 400: All streams of the Subclass 400 visa are covered for CCAMLR applicants and their family members as the specified class for nil VAC under sub-subparagraph 1231(2)(a)(iv)(A) (s 5).
• Subclass 600: Only the Business Visitor stream and the Tourist stream are covered, and then only where the CCAMLR applicant or family member is seeking to satisfy the primary criteria for the relevant stream (s 6).
• Subclass 408: The coverage is tied to the Invited Participant in an event criterion, specifically applicants satisfying clause 408.219A on the basis of clause 408.221, and family members of holders of subclass 408 visas where the holder was in the CCAMLR class at the time of their application (s 7).

Administrative actors

• The instrument is made by a Ministerial delegate in the Department of Home Affairs (Alison Garrod, Temporary Visas Branch). The Department administers visa applications under the Migration Regulations; the instrument’s specifications will be applied in that administrative process (instrument header, s 3 authority). While the instrument does not itself name the visa officer or decision-maker, its specifications are operative within the statutory charging framework the Department applies.

Who is excluded or may be surprised

• Persons who work for CCAMLR but are "locally recruited and assigned to hourly rates of pay" are excluded from the staff member definition and so will not be CCAMLR staff members for the instrument’s purposes (s 4). That exclusion can alter eligibility despite an employment relationship with CCAMLR.
• Experts are expressly not staff members (s 4). Conversely, staff members are not to be treated as experts for the purposes of the definition; this matters where an individual’s role could be characterised either way.

Rights created or clarified by the instrument

• Right to nil VAC: A CCAMLR applicant or family member specified by the instrument is to be treated as a person for whom the visa application charge is nil for the purposes of the cited Migration Regulations provisions. That entitlement applies to: (a) Subclass 400, all streams (s 5); (b) Subclass 600 Business Visitor and Tourist streams, where the applicant seeks to satisfy the primary criteria for those streams (s 6); and (c) Subclass 408 Invited Participant in an event criteria as set out in s 7 (s 7).
• Definition-based entitlement: The right to nil VAC is conditional on meeting the instrument’s definitions , i.e., the applicant must fit the CCAMLR applicant definition (representative, staff member, expert/consultant on missions, or observer) or be a qualifying family member (s 4).

Duties and compliance obligations implicit in the instrument

• Duty to satisfy visa criteria: The instrument does not waive any of the primary or secondary substantive criteria for the grant of the visa subclasses themselves. For example, s 6 specifies the nil VAC only for applicants who are "seeking to satisfy the primary criteria" for the Business Visitor or Tourist streams of Subclass 600. Likewise, s 7 ties the Subclass 408 specification to clauses 408.219A and 408.221. Therefore, applicants still carry the duty to meet the visa criteria set out in the Migration Regulations; the instrument affects only the VAC element (ss 6-7).
• Duty to fall within definitions: Applicants bear the factual and evidentiary duty of showing that they are CCAMLR applicants as defined, or members of the family unit as defined in reg 1.12 of the Migration Regulations (s 4; Note 2). The instrument does not itself set out an evidentiary regime, but the defined terms determine entitlement to the nil VAC.
• Duty as to stream selection and application basis: Applicants must apply in the correct visa subclass and stream to attract the nil VAC (s 5 for Subclass 400; s 6 for the specified Subclass 600 streams; s 7 for Subclass 408 criteria). The instrument conditions the VAC waiver on the stream and clause under which the applicant seeks grant.

Administrative duties

• Application of nil VAC by processing authority: Administrative officers implementing the Migration Regulations will have the duty to treat VAC as nil for specified applicants under the cited regulation provisions. The instrument is an administrative specification made under powers referenced in s 3; it therefore directs the charging outcome for those statutory provisions.

The instrument itself does not create offences, criminal penalties, or explicit enforcement mechanisms. Its text is limited to specifying classes of persons for the purposes of certain charging paragraphs in the Migration Regulations (ss 3, 5-7). It does not include provisions describing penalties for non-compliance, fraud, or misrepresentation, nor does it prescribe investigative or sanctioning procedures.

What the instrument does for enforcement purposes

• Administrative application of charging rules: The primary enforcement function of the instrument is administrative. By specifying particular classes of persons for a nil VAC, the instrument determines the charging outcome the Department of Home Affairs should record and apply when processing visa applications that meet the instrument’s definitional and subclass/stream conditions (ss 5-7). The "enforcement" in practice will therefore be the application or non-application of a VAC during processing.

Where penalties or sanctions would arise

• The instrument’s silence on penalties means any sanction for false statements, forged documents, or improper claims of CCAMLR status would remain within the general statutory and regulatory framework governing migration applications. The instrument does not purport to displace or modify those other provisions; it simply addresses the VAC application for specified persons. The instrument explicitly notes the statutory definition of VAC in s 5 of the Migration Act (Note 1), implying the VAC regime remains anchored in the Migration Act subject to this specification.
• Any enforcement action for misrepresentation, providing false documents, or other misconduct in support of an application would therefore rely on the Migration Act, the Migration Regulations and other relevant legislation or administrative rules. Those potential sanctions are not set out in the instrument.

Practical effects for applicants and officers

• For applicants: There is no indication in the instrument that claiming the nil VAC is a protected immunity from investigation. Applicants claiming CCAMLR affiliation must ensure the claim is accurate because any subsequent action under the broader migration law based on falsity would not be barred by this instrument (s 4 definitions; Notes).
• For officers: The instrument directs a charging outcome but does not provide an investigatory regime; officers retain their usual responsibilities and powers under the Migration Act and Migration Regulations to verify claims and apply appropriate administrative action where falsehoods are detected. The instrument does not modify those powers or duties.

The instrument operates as a specification made under powers contained in the Migration Regulations and it explicitly cross-references key provisions in the Migration Act and Migration Regulations. Its effect must therefore be read in the context of the broader migration legislative structure it invokes.

Cross-references and statutory anchors

• Migration Regulations authority: The instrument is made under specific provisions of the Migration Regulations: sub-subparagraph 1231(2)(a)(iv)(A) of Schedule 1, subparagraph 1236(2)(a)(iv) of Schedule 1, and subregulation 2.07(5) for the purposes of subparagraph 1237(2)(a)(i) of Schedule 1 (s 3). Those provisions are the direct legal hooks authorising specification of classes of persons for nil VAC under the Schedule’s charging framework.
• Migration Act VAC definition: The instrument records that the expression visa application charge used in the instrument is defined in section 5 of the Migration Act 1958 (Note 1). That cross-reference anchors the concept of VAC to the Migration Act while leaving the charging outcome for specified persons to be determined by this instrument under the Migration Regulations.
• Member of the family unit definition: The instrument notes that the expression member of the family unit is defined in regulation 1.12 of the Migration Regulations 1994 (Note 2). Thus, the instrument’s reference to family members is dependent on the statutory definition outside the instrument itself.

Interaction with visa-specific criteria in the Migration Regulations

• Subclass 600 primary criteria: The instrument specifies the nil VAC only for CCAMLR applicants or family members seeking to satisfy the primary criteria for the Business Visitor or Tourist streams (s 6). It therefore interacts with the substantive visa criteria in Schedule 2 of the Migration Regulations that set out those primary criteria; satisfying those criteria remains a prerequisite to the visa grant even where VAC is waived.
• Subclass 408 clauses: For Subclass 408, the instrument ties the VAC waiver to clause 408.219A on the basis of clause 408.221 (s 7(a)). These clauses are within Schedule 2 and the instrument’s effect depends on their operation; in other words, the instrument does not replace or override the substantive grant criteria in Schedule 2 but attaches a charging outcome to them.
• Subclass 400: The instrument specifies nil VAC for all streams of subclass 400 for CCAMLR applicants and family members (s 5); the instrument therefore intersects with the substantive criteria for subclass 400 in Schedule 2, which remain applicable.

The instrument itself contains no internal amendment history or prior versions. The document as provided includes a Contents list and seven numbered provisions (ss 1-7), with the instrument dated 1 May 2024 and signed by the departmental delegate (header and signed block). Section 2 states the commencement rule: the instrument commences on the day after it is registered. The instrument therefore records a single enactment event in that dated instrument text; no textual amendment entries are present within the instrument.

What the instrument records about its authority and context

• The instrument identifies the statutory authority under which it is made (s 3): specific subparagraphs of Schedule 1 and a subregulation. That identification indicates the legal basis for the instrument’s specifications and provides the pathway by which a similar instrument could be made or amended in future using comparable authority in the Migration Regulations.
• The instrument contains definitions (s 4) and three operative specification provisions (ss 5-7). These operative clauses are narrowly focused and self-contained; any amendment to broaden or narrow entitlements would likely require a further instrument under the same or equivalent statutory authority, but such procedural detail is not spelled out inside this instrument.

Absence of listed modifications

• No amendment entries, revocations, or transitional provisions are included. The instrument does not say that it revokes or replaces any earlier instrument. It is therefore presented as a standalone instrument effecting the specified charging outcome from its commencement (s 2).

Implications visible in the instrument

• Because the instrument is a specification, changes to the instrument’s scope in the future could be implemented by making a new instrument under the Migration Regulations authority cited in s 3. The instrument itself does not contain a mechanism for amendment; the document’s structure , a dated instrument with numbered clauses and a commencement provision , matches the standard form for a delegated instrument that enters the migrationinstrument registry and may be superseded or varied by subsequent instruments made under the same legislative powers.

Practitioner note on verifying currency

• The instrument’s commencement is tied to registration; practitioners must therefore verify the registration date in the Federal Register of Legislation or the Department’s notices to confirm the operative date. The instrument itself states that it commences on the day after it is registered (s 2), but does not provide the registration date within the text provided here.

The instrument text supplied contains no references to litigation, judicial decisions, or any court or tribunal determinations. It does not name any cases or record any past or pending litigation related to its subject matter. The instrument is a delegated administrative specification focusing on the charging treatment of particular classes of visa applicants and family members; the text itself does not document any disputes or legal challenges.

Where disputes would likely focus if litigation were to arise

• Interpretation of definitions: Any dispute about entitlement to the nil VAC would be susceptible to litigation or administrative review centred on the instrument’s definitions (s 4). Key interpretive questions could include whether an individual’s role qualifies as an "expert", "staff member", "representative of a Party" or "observer" as those terms are used in the instrument, and whether a person claiming as a family member meets the "member of the family unit" definition in regulation 1.12 (s 4; Note 2).
• Application to streams and clauses: For Subclass 600 and Subclass 408, the specification is conditional on particular streams or clauses (ss 6-7). Potential disputes may turn on whether an applicant was in fact "seeking to satisfy the primary criteria" for a Business Visitor or Tourist stream (s 6), or whether an applicant properly sought to satisfy clause 408.219A on the basis of clause 408.221 (s 7(a)). These are questions of statutory and regulatory construction that would be litigable in the appropriate forum.
• Temporal elements: The Subclass 408 family-member pathway includes a temporal condition , the visa-holder must have been in the CCAMLR class at the time of their application (s 7(b)(ii)). Disputes could focus on documentary proof and timing.

Absence of litigation guidance in the instrument

• The instrument does not prescribe procedural remedies, merits review pathways, or appeal rights specific to the specification. Any challenge to administrative decisions arising from the instrument would proceed under the usual Migration Act and Migration Regulations framework and associated judicial or tribunal jurisdiction, but the instrument itself does not discuss those processes.

Practical relevance for practitioners

• Because the instrument governs an administrative charging outcome, factual disputes about status, timing, and the correct application of visa-stream criteria are the likely flashpoints for disagreements that might reach review bodies or courts. The instrument’s text identifies the touchpoints , definitions (s 4) and the relevant Schedule 1 and Schedule 2 clauses cited in ss 3, 6 and 7 , that practitioners should target in advising clients and in evidence preparation should a decision be contested.

The instrument’s brevity and reliance on external definitions create a number of practical pitfalls that practitioners and applicants should be aware of. The following are concrete, source-grounded issues derived from the instrument’s text (ss 2-7, s 4, Notes).

1. Family member is not self-explanatory

• The instrument treats "family member" via the reference to member of the family unit defined in regulation 1.12 of the Migration Regulations (s 4; Note 2). Do not assume "family" equals spouse or de facto partner only; consult reg 1.12 to confirm the statutory composition of the family unit. Misapplying domestic or colloquial definitions risks disallowance of the nil VAC entitlement.

2. Staff member vs expert , mutual exclusions

• The instrument defines "expert" and "staff member" as mutually exclusive categories (s 4). A person engaged by CCAMLR on short-term missions is an expert, not a staff member; conversely, full-time employees are staff members, but locally recruited hourly-rate staff are excluded from staff-member status. Applicants who mischaracterise their relationship with CCAMLR risk being outside the specified class.

3. Observers require formal invitation from CCAMLR or the Scientific Committee

• The observer category is limited to persons "invited by CCAMLR or the Scientific Committee" and invited as representatives of organisations (s 4). Informal attendance or attendance without formal invitation will not meet the definition.

4. Subclass 600 relief is stream-specific and criterion-specific

• For Subclass 600, the nil VAC applies only where the applicant is "seeking to satisfy the primary criteria" in the Business Visitor or Tourist streams (s 6). If an applicant applies in a different Subclass 600 stream or attempts to meet secondary criteria, the nil VAC will not be triggered by this instrument.

5. Subclass 408 relies on specific clauses in Schedule 2

• The Subclass 408 specification is tied to clause 408.219A on the basis of clause 408.221 (s 7(a)). Practitioners must check those clauses in Schedule 2 to confirm the applicant’s factual and legal fit with the Invited Participant in an event pathway; the instrument does not itself restate the content of those clauses.

6. Temporal condition for family members in Subclass 408

Compliance in this context is primarily about structuring the visa application so the applicant fits the instrument’s definitions and applies under the correct subclass, stream or clause to attract the nil VAC. The instrument does not prescribe evidence formats, but the following steps are grounded in the instrument’s text (ss 2-7, s 4; Notes).

1. Confirm role-based eligibility under the instrument’s definitions

• Determine whether the applicant is a CCAMLR applicant per s 4: are they a representative of a Party, a CCAMLR staff member (subject to exclusions), an expert or consultant on missions for CCAMLR, or an observer invited by CCAMLR or the Scientific Committee? If none of these apply, the instrument does not confer nil VAC entitlement.
• For staff members, ensure the person is not "locally recruited and assigned to hourly rates of pay" because that exclusion removes staff-member status (s 4).
• For experts, ensure the engagement is properly characterised as short-term or temporary and that duties are on behalf of CCAMLR or the Scientific Committee (s 4).

2. Check family-member status against regulation 1.12

• If claiming entitlement as a family member, consult regulation 1.12 of the Migration Regulations to confirm membership of the family unit (s 4; Note 2). The instrument defers to that external definition; do not assume ordinary familial relationships suffice.

3. Select the correct visa subclass and stream or clause

• Subclass 400: Any CCAMLR applicant or qualifying family member may apply under Subclass 400 in any stream to attract the nil VAC (s 5). Ensure the substantive application is otherwise appropriate for Subclass 400.
• Subclass 600: Apply under the Business Visitor stream or the Tourist stream and make the application on the basis of the primary criteria for that stream (s 6). If applying in another Subclass 600 stream, the instrument’s nil VAC does not apply.
• Subclass 408: Use the Invited Participant in an event pathway and ensure the application seeks to satisfy clause 408.219A on the basis of clause 408.221 (s 7(a)). For family members seeking the secondary criteria, ensure the principal visa-holder was in the CCAMLR class at the time of their application (s 7(b)(ii)).

4. Assemble documentary support that demonstrates CCAMLR affiliation and the factual basis for the visa stream