Migration (IMMI 18/001: Class of Passports) Instrument 2018

The instrument’s legal construct is narrow and technical. Its stated authority is a single Public Interest Criterion, namely PIC 4021 in Schedule 4 to the Migration Regulations 1994 (s 3). Section 6 makes clear that the specification is for the purposes of subparagraph 4021(a)(iii) only. Consequently, the instrument’s scope is the identification of passport classes or travel document types that are relevant to that specific regulatory provision, not a general overhaul of passport law or migration policy.

Key definitional and interpretative pointers are in the preliminary provisions. The instrument notes that a number of expressions used are defined in the Migration Act 1958 and the Regulations, including “passport” (s 4). The instrument also defines “Regulations” as the Migration Regulations 1994 (s 4). The schedules take two forms. Schedule 1 identifies travel documents “with certain characteristics”; these are functional descriptions that turn on characteristics such as whether the passport is damaged so identity cannot be confirmed, or whether an endorsement states the passport is not valid for migration (Schedule 1 items 1-6). Schedule 2 is a catalogue of particular travel documents and passport types specified by name or by a particular physical description or endorsement (Schedule 2, items 1-34).

Several items in Schedule 2 include express exceptions that remove a travel document from being specified where additional evidence exists. For example, British Dependent Territories Citizen passports and British Overseas Citizen passports described as lacking reference to the European Union are specified except where the passport contains a certificate or wet stamp stating the bearer has indefinite leave to remain in the United Kingdom, or where the passport is endorsed with a right of re-entry to the country of issue or another country (Schedule 2, items 4 and 5). Similarly, a ‘United Kingdom of Great Britain and Northern Ireland’ passport without reference to the EU containing the notation “the holder is subject to control under the Immigrant Act 1971” is specified except where the passport contains a certificate or wet stamp stating indefinite leave to remain in the United Kingdom or is endorsed with a right of re-entry (Schedule 2, item 32). Item 28 excludes Taiwanese “compatriot” documents only where the passport holder has evidence of a separate right of re-entry into the issuing country or another country. Schedule 1 item 4 separately flags temporary visa cases where the passport is not endorsed with a right of re-entry or not accompanied by separate evidence of a right of re-entry.

The instrument also repeals two earlier instruments in full (Schedule 3). The requirement that any instrument specified in a Schedule is amended or repealed “as set out in the applicable items” is set out in s 5. This means the current instrument both specifies classes of passports and supersedes earlier specifications listed in Schedule 3.

The instrument affects a narrow group of actors by virtue of its role in the application of PIC 4021(a)(iii). Primary categories affected include:

• Applicants for visas or persons whose eligibility is assessed under Schedule 4 to the Migration Regulations 1994, to the extent that PIC 4021 is one of the criteria applied in their matter. The instrument identifies certain travel documents and passport types that will be treated under subparagraph 4021(a)(iii) (s 6; Schedule 1; Schedule 2). Holders of the listed passports or documents will therefore be treated as falling within the specified classes for the purposes of that subparagraph unless an express exception in the schedules applies.

• Migration decision-makers in the Department of Home Affairs and related decision-making bodies who apply Schedule 4 to the Regulations. The instrument provides them with a list of document classes and specific documents to use when applying subparagraph 4021(a)(iii), so it changes what document types must be treated as within that subparagraph (s 6).

• Officials responsible for identity verification at border processing points, visa processing centres, and case officers assessing migration matters. Schedule 1 includes documents whose physical condition or endorsements affect whether the holder’s identity can be confirmed (Schedule 1, item 2), and items that turn on endorsement content (Schedule 1 items 3, 4, 5). Those facts are matters of evidence for officials.

• Issuing authorities and entities that produce travel documents. Schedule 1 item 6 specifies travel documents “issued by an entity which is not recognised by the Australian Government as empowered to issue travel documents.” That affects how documents issued by non‑recognised entities are treated, and may influence applicants’ choices about which travel documents to present.

• Intergovernmental and foreign authorities indirectly specified by name in Schedule 2. The listing of particular passports and travel documents, for example those of Abkhazia and South Ossetia, Taiwan Official/Diplomatic travel documents, and documents issued by the Turkish Republic of Northern Cyprus, identifies those documents in the regulatory instrument. Holders of those documents are affected when PIC 4021 is considered.

The instrument does not itself confer rights or impose criminal penalties. It functions as an administrative specification used in applying PIC 4021. The immediate practical effect is on visa applicants who possess travel documents described in Schedule 1 or Schedule 2, and on migration officers and decision-makers who must apply those specifications when considering subparagraph 4021(a)(iii) (s 6).

The instrument does not create standalone statutory duties or rights in the manner of primary legislation. Instead it operates by specifying classes of documents that are relevant to the application of a particular public interest criterion in the Migration Regulations.

Who decides: The instrument was made by the Minister (the text names Peter Dutton) and is made under the authority of PIC 4021 in Schedule 4 to the Regulations (s 1; s 3). Application of the specification is therefore for decision-makers applying the Regulations, who must take the specified classes into account for subparagraph 4021(a)(iii) (s 6).

Duties imposed on officials: The text instructs that, “for the purposes of subparagraph 4021(a)(iii)”, two categories of travel documents are specified (s 6). That requires officials to treat travel documents that fall within Schedule 1 or Schedule 2 as belonging to the class identified for that subparagraph. The instrument thus places an evidentiary or classificatory obligation on officials applying PIC 4021(a)(iii) to consider these schedules.

Rights or exceptions given to applicants: Schedule 2 contains express carve-outs where certain evidence negates specification. For example, Items 4, 5 and 32 state that certain United Kingdom-related passports are specified except where the passport contains a certificate or wet stamp stating the bearer has indefinite leave to remain in the United Kingdom, or where the passport is endorsed with a right of re-entry to the country of issue or another country. Item 28 excludes Taiwanese “compatriot” documents where the passport holder has evidence of a separate right of re-entry into the issuing country or another country. Schedule 1 also distinguishes between permanent and temporary visas with respect to endorsements and re-entry evidence (Schedule 1 items 3-4). These provisions function as conditional rights to avoid classification where specific evidence is presented.

What applicants can do practically: Although the instrument does not prescribe actions for applicants, its structure implies that producing the specified forms of evidence (certificates, wet stamps, endorsements, or separate evidence of right of re-entry) will change whether a travel document is specified for PIC 4021(a)(iii) purposes in certain listed cases (Schedule 2, items 4, 5, 28, 32; Schedule 1 items 3-4).

No penalties or sanctions are drafted into the instrument itself. The text contains no offences, fines, or direct enforcement mechanisms. The operational effect arises through the Regulations and the application of PIC 4021 by decision-makers (s 3; s 6).

The instrument contains no criminal or civil penalty provisions and does not itself set out enforcement mechanisms. Its legal effect is to specify classes of travel documents for the purposes of a public interest criterion under the Migration Regulations 1994 (s 3; s 6). Enforcement, determinations and any consequences flow from how PIC 4021 and the Migration Regulations are applied by relevant decision-makers, not from the instrument’s text.

Because the instrument operates as a specification for subparagraph 4021(a)(iii), any consequences of a document being within the specified class depend on the content and operation of PIC 4021 itself. The instrument does not reproduce PIC 4021, nor does it state the outcomes that follow from a document being within the class. Therefore the instrument does not provide decision-making rules about penalties or refusal/acceptance; it only identifies what is to be treated as falling within that subparagraph for the purposes of applying PIC 4021 (s 6).

Enforcement and administrative effect will be implemented through departmental and regulatory processes that apply the Migration Regulations. Officials charged with applying Schedule 4 to the Regulations must take the instrument into account when making their assessments. Any administrative outcome that could be characterised as an enforcement action will derive from the application of PIC 4021 under the Regulations and the Migration Act 1958 rather than from the instrument itself (s 3; s 4).

The instrument also repeals two earlier instruments in full (Schedule 3). Where enforcement practice previously relied on the earlier instruments IMMI 14/073 or IMMI 14/094, that prior specification is removed and replaced by the current specification. This is an administrative change rather than the imposition of new statutory penalties.

The instrument is framed expressly in relation to the Migration Regulations 1994 and the Migration Act 1958. Section 3 declares that it is made under Public Interest Criterion 4021 in Schedule 4 to the Regulations. Section 4 records that a number of expressions used are defined in the Migration Act 1958 and the Regulations, including the term passport. Section 4 also defines “Regulations” to mean the Migration Regulations 1994. Those cross-references establish the instrument as subordinate and functional to the Regulations and the Act (s 3; s 4).

Operationally, the instrument is an adjunct to Schedule 4 of the Regulations. It specifies which travel documents are to be treated as within subparagraph 4021(a)(iii). Consequently, to understand the instrument’s legal impact one must read it together with PIC 4021 and the other provisions of the Regulations and Act that govern visa assessment, public interest criteria, and administrative decision-making. The instrument does not and cannot, on its own, determine visa outcomes; those are determined under the Act and Regulations using PIC 4021 and other applicable criteria (s 3; s 6).

The instrument also interacts with earlier subordinate instruments by expressly repealing IMMI 14/073 and IMMI 14/094 in full (Schedule 3). This replaces prior specifications and directions with the current lists and characteristics, and so changes the body of subordinate regulatory material that decision-makers must consult when applying PIC 4021.

Because the instrument relies on definitions in the Migration Act and the Regulations for terms such as “passport” and other expressions, interpretation of its Schedules may require reference to those primary sources. For example, the distinction in Schedule 1 between permanent and temporary visas (items 3-4) presupposes the statutory definitions and categories of visas found in the Act and Regulations. Likewise, the notion of recognition of an issuing authority in Schedule 1 item 6 implicates foreign policy and recognition decisions of the Australian Government, which are outside the instrument but relevant to its operation.

Finally, the exceptions specified in Schedule 2 (for example certificates or wet stamps stating indefinite leave to remain, or endorsements showing right of re-entry) are forms of evidence that will be assessed under the procedures and evidentiary rules that apply to migration matters in the Act and Regulations. The instrument does not prescribe how those items are to be evidenced beyond naming them as exceptions.

This instrument is the Migration (IMMI 18/001: Class of Passports) Instrument 2018 and is dated 12 July 2018 (s 1). Its commencement is the day after registration (s 2). The instrument expressly repeals two earlier instruments in their entirety in Schedule 3: IMMI 14/073 (Class of Passports Instrument 2014) and IMMI 14/094 (Direction (Section 71B)) (Schedule 3). The Schedule 3 text states “The whole of the instrument” for each item and then “Repeal the instrument.” That is a full repeal of those prior subordinate instruments.

Section 5 sets a general operative rule for Schedules, stating that each instrument specified in a Schedule is amended or repealed as set out in the applicable items in that Schedule, and that any other item in a Schedule has effect according to its terms (s 5). In practice, Schedule 3 therefore effects the repeal of the two earlier instruments and the current instrument’s Schedules set out the new specifications to be used for subparagraph 4021(a)(iii) (s 5; Schedule 3).

No other amendments to primary legislation or to the Migration Regulations are made in the text of this instrument. The instrument’s own Schedules are the operative material replacing the earlier subordinate specifications. The instrument therefore constitutes a point-in-time substitution of the classes and named travel documents to be used for PIC 4021(a)(iii) assessments as of its commencement date.

There is no text in the instrument indicating subsequent amendments, transitional provisions, or staged implementation. The instrument’s effect on decision-making is immediate upon commencement in accordance with s 2 and its content.

The instrument’s text contains no references to litigation, case law, judicial review proceedings, appeals or decisions that interpret it. It names no cases and does not summarise any judicial consideration. The material provided is purely the subordinate legislative specification and its Schedules.

Because the instrument is a specification used in applying a regulatory public interest criterion, it is theoretically subject to judicial review in proceedings where the application of PIC 4021 or the instrument’s specifications materially affect a person’s legal rights or interests under the Migration Act and Regulations. However the instrument itself provides no account of litigation history and none is recorded within the text.

Users seeking case law or judicial treatment of PIC 4021 or of earlier instruments (for example IMMI 14/073 or IMMI 14/094 which are repealed by this instrument) will need to consult external legal databases and decisions. The instrument does not provide that material and contains no citations to judicial decisions.

The instrument’s utility depends on auxiliary materials and factual inquiry that are not contained within its text. Several points create potential pitfalls for applicants and decision-makers.

1. The instrument is confined to subparagraph 4021(a)(iii). It does not say how the specified classes interact with other subparagraphs of PIC 4021, other public interest criteria, or other statutory grounds for visa refusal or grant (s 3; s 6). Users must therefore ensure they apply the instrument only in the strictly stated context.

2. The instrument relies on external definitions. Section 4 states that a number of expressions are defined in the Migration Act 1958 and the Regulations, including “passport.” Failure to consult those definitions can lead to misclassification. For example, the Schedule 1 distinction between permanent and temporary visas (items 3-4) presupposes statutory categories that are not defined in the instrument itself (s 4; Schedule 1 items 3-4).

3. Many items depend on documentary particulars or physical characteristics. Schedule 2 contains entries that are specific and sometimes highly detailed. Items 9 and 10 describe Democratic Republic of the Congo passports bearing the words “Republique du Zaire” with passport numbers starting with Z, and refer to specific page counts and cover materials. Such granular descriptions require officers to inspect the physical travel document closely when assessing classification (Schedule 2, items 9-10).

4. Several entries include exceptions that operate only where particular evidence is presented. For instance, Items 4, 5 and 32 specify that certain United Kingdom passport forms are excluded where a certificate or wet stamp shows indefinite leave to remain, or where there is an endorsement showing a right of re-entry (Schedule 2, items 4, 5, 32). Item 28 excludes Taiwanese “compatriot” documents where a separate right of re-entry exists. Decision-makers must identify and correctly evaluate these exceptions; they are not automatic. The instrument does not define what counts as “satisfactory evidence” except in the text of the relevant items, so practical evidentiary assessments are required (Schedule 2, items 4-5, 28, 32; Schedule 1 items 3-4).

5. Some items are phrased by reference to recognition of issuing authorities. Schedule 1 item 6 specifies travel documents “issued by an entity which is not recognised by the Australian Government as empowered to issue travel documents.” That phrase imports a separate governmental determination about recognition. The instrument does not set out how recognition decisions are to be made or where they are recorded. Users will need to consult Australian Government foreign policy or other departmental records to determine whether an issuing entity is recognised for this purpose (Schedule 1 item 6).

6. The instrument replaces earlier instruments entirely (Schedule 3). Where practice had developed under IMMI 14/073 or guidance associated with IMMI 14/094, those instruments are repealed and the specific lists in this instrument become the operative specification from commencement. Practitioners should check whether procedural guidance was associated with the repealed instruments and whether it has itself been updated.

7. The instrument is silent about remedial or transitional arrangements for persons previously assessed under the repealed instruments. It does not state whether prior decisions are to be revisited or whether ongoing applications will be reassessed. The practical consequence is that agencies and applicants must clarify administratively how the change in specification affects active cases.

8. The instrument contains categories such as “group passports (eg. a passport issued to a sporting team) other than a family” (Schedule 1, item 1). The scope of “group passports” and the meaning of “family” in this context are not defined in the instrument, creating potential factual ambiguity for decision-makers assessing whether a particular group‑style passport falls within the item.

9. The instrument’s effectiveness for individuals depends on evidence of re-entry rights or endorsements, for example wet stamps or certificates stating indefinite leave to remain. The instrument does not provide a comprehensive list of acceptable proof formats beyond the examples in the Schedules. This shifts a practical burden to applicants and case officers to determine whether submitted evidence meets the stated exceptions (Schedule 2, items 4, 5, 28, 32; Schedule 1 items 3-4).

10. Finally, because the instrument is an administrative specification tied to a public interest criterion, its operational impact depends on how PIC 4021 is applied in the broader decision-making framework under the Act and Regulations. The instrument itself does not state the administrative consequences of being within the specified class; those consequences must be sought in the Regulations and departmental practice.

Compliance for affected parties will be practical and evidentiary rather than a new statutory obligation set out in the instrument. The instrument identifies how travel documents are to be treated for subparagraph 4021(a)(iii), and compliance therefore means ensuring that the documentary or factual record supports a classification that is favourable to the applicant where possible, or accurately reflects the document’s status where not.

For applicants (holders of travel documents listed in Schedule 1 or Schedule 2):

• Where a Schedule 2 item contains an express exception based on a certificate, wet stamp, endorsement, or separate evidence of right of re-entry, provide that documentary evidence with the visa application or at the earliest stage of assessment. Items 4, 5 and 32 expressly list a certificate or wet stamp stating indefinite leave to remain in the United Kingdom, and Schedule 1 items 3 and 4 and Schedule 2 item 28 require evidence of a right of re-entry in some circumstances (Schedule 2, items 4, 5, 28, 32; Schedule 1 items 3-4). The instrument ties the exception to those forms of evidence.

• If the passport is damaged so that identity cannot be conclusively confirmed, as described in Schedule 1 item 2, obtain a replacement passport or obtain alternative documentary evidence that establishes identity under the relevant provisions of the Migration Act and Regulations. The instrument describes the circumstance which causes the document to be specified but does not prescribe the alternative evidence. Applicants should therefore proactively seek a valid travel document or authoritative proof of identity.

• Where a travel document has an endorsement that renders it “not valid for migration” in the case of permanent visas (Schedule 1 item 3), applicants should seek clarification from the issuing authority about the endorsement or obtain a travel document that is not so endorsed if they wish to avoid classification under that item.

• Avoid presenting group passports where an individual passport suitable for migration purposes is available. Schedule 1 item 1 specifies group passports (for example, a sporting team passport) other than a family passport. If possible, present an individual passport that is not described in Schedule 1 or Schedule 2.

For decision-makers and officials:

• Apply the specification only in the context of subparagraph 4021(a)(iii). Section 6 makes the instrument’s operation conditional on that subparagraph (s 6). Do not apply these Schedules to other public interest criteria absent a separate instrument or regulation.

• Consult the Migration Act 1958 and the Migration Regulations 1994 for definitions of terms used in the instrument, including “passport”, and for the operative content of PIC 4021. Section 4 of the instrument directs users to those primary definitions (s 4).

• Where Schedule 2 contains exceptions (for example, certificates, wet stamps, or endorsements), require applicants to produce those items as part of the evidentiary record and assess whether they meet the exception. Schedule 2 items 4, 5, 28 and 32, and Schedule 1 items 3-4, make those exceptions conditional on such evidence.

• For items that hinge on recognition of the issuing authority (Schedule 1 item 6), refer to relevant Australian Government determinations or departmental guidance about recognition status. The instrument specifies the test but not how recognition is to be determined or documented (Schedule 1 item 6).

• Inspect physical travel documents where Schedule 2 relies on physical or textual characteristics. Items that describe colours, page counts, cover materials and specific inscriptions require close examination (Schedule 2, items 9-10 and others).

• Treat the Schedules as the operative specification from the instrument’s commencement and note that IMMI 14/073 and IMMI 14/094 are repealed in full by Schedule 3. Administrative practices that referred to those earlier instruments should be updated to reflect the new lists and wording (Schedule 3).

Record-keeping and procedural safeguards:

• Record the basis on which a travel document is classified as within or outside the specified classes, including any evidence relied upon for exceptions such as indefinite leave, wet stamps, right of re-entry endorsements, or issuing authority recognition. The instrument’s effect is evidentiary and administrative; accurate records will be required to support decisions under the Migration Act and Regulations.

• Where ambiguity exists, clarify the factual basis with the applicant and, if necessary, seek confirmations from issuing authorities. The instrument provides detailed descriptions in some cases but leaves factual assessment to officials.

• Where an applicant provides a damaged passport or a document with endorsements describing it as not valid for migration, record the nature of the damage or endorsement and whether satisfactory alternative evidence was provided. Schedule 1 items 2 and 3 make these features a basis for specification.

Limitations of compliance advice:

• The instrument does not specify the legal consequence of classification under PIC 4021(a)(iii). Compliance steps here are focused on evidentiary and documentary actions to avoid having a travel document fall within the specified classes where exceptions are available, or to ensure accurate classification where they are not. Determinations about visa grant, refusal, or other outcomes remain matters for the Migration Regulations and administrative processes under the Migration Act.

• Practitioners should coordinate with departmental guidance and procedural manuals, and confirm whether any departmental policy documents accompany the instrument, because the instrument itself is limited to naming and describing classes of travel documents for a particular PIC (s 6; Schedule 3).