Migration (IMMI 18/002: Eligible Passports) Instrument 2018

The instrument turns on a small number of legal and factual concepts that determine inclusion or exclusion from the statutory category 'eligible passport' for the purposes of section 165. The principal concepts, taken directly from the instrument, are:

• "Eligible passport" for section 165 of the Act. Section 6 supplies a positive rule: all valid passports are eligible unless excluded by Schedules 1 or 2. The definition operates by exclusion rather than by comprehensive positive listing (s 6).

• Valid passport. The instrument repeatedly refers to "valid passports" or "travel documents". The instrument does not define “passport” itself; the text notes that a number of expressions including "passport" are defined in the Act (s 4, note). Practitioners must therefore read this instrument together with the definitions in the Act when determining whether a travel document is a passport and whether it is valid.

• Characteristics-based exclusions (Schedule 1). Schedule 1 lists factual or documentary features that render a travel document not an 'eligible passport'. These are: group passports other than family (Sch 1.1); damage that obscures name, photograph or other important information or missing pages such that identity cannot be conclusively confirmed (Sch 1.2); permanent‑visa travel documents explicitly endorsed as "not valid for migration" (Sch 1.3); temporary‑visa travel documents that are not endorsed and not accompanied by separate evidence of right of re-entry to the issuing country or another country (Sch 1.4); documents where endorsement would indicate recognition of an issuing authority contrary to Australian Government foreign policy (Sch 1.5); and travel documents issued by an entity not recognised by the Australian Government as empowered to issue travel documents (Sch 1.6).

• Specified-document exclusions (Schedule 2). Schedule 2 lists named travel documents and document types that are not 'eligible passports' for s 165. The list contains specific territory, organisational and documentary entries (33 items) and in several items the instrument specifies narrow exceptions (for example, certain UK passports when accompanied by evidence of indefinite leave to remain or a right of re-entry: Sch 2 items 4-5 and 31).

• Relationship to executive foreign policy and recognition. The instrument explicitly ties non‑eligibility to Australian Government recognition when Schedule 1(5) disqualifies passports where endorsement would indicate recognition contrary to Australian Government foreign policy, and Schedule 1(6) excludes passports issued by an entity not recognised by the Australian Government as empowered to issue travel documents. The Schedule 2 list mirrors that approach by naming travel documents issued by entities (real or alleged) whose travel documents Australia does not treat as eligible.

• Repeal and replacement. Schedule 3 repeals the earlier IMMI 14/079 instrument in full, so the 2018 instrument is the operative administrative determination following registration (Sch 3).

Those are the instrument’s core legal categories. Application of the instrument requires factual determination by the decision-maker of the passport’s validity, the presence or absence of the listed characteristics, and whether a named document in Schedule 2 is the travel document presented.

The instrument affects three principal groups identified by its text and the mechanism it sets out.

1. Holders or presenters of travel documents and passports. The instrument determines whether a particular travel document will be treated as an 'eligible passport' for the purposes of section 165 of the Act (s 6). Practically, any person who holds or presents a passport or travel document for migration purposes is affected because their document will either fall within the instrument’s general rule,"all valid passports are 'eligible passports'",or be excluded by Schedules 1 or 2. Examples drawn directly from Schedule 1 and Schedule 2 show how particular holders are affected: holders of group passports that are not family group passports (Sch 1.1) are excluded; holders of passports with the types of damage listed in Schedule 1(2) are excluded; and holders of the specific travel documents named in Schedule 2 (33 listed items) are excluded.

2. Decision‑makers applying section 165. The instrument is a statutory determination about the meaning of a term used in s 165 of the Act (s 6). Officials, case officers and delegates who apply section 165 will use the instrument as the binding administrative determination of which passports are ‘eligible passports’. The instrument streams decision‑making: it declares a starting presumption (valid passports eligible) and then prescribes disqualifying features and a named blacklist, which decision‑makers must apply to the documents presented.

3. The administrative sponsor and legal authority. The Secretary of the Department of Home Affairs made the instrument under s 175A (s 3 and instrument heading). The instrument also refers to Australian Government foreign policy (Sch 1.5 and Sch 1.6) as a criterion for exclusion, so broader executive recognition decisions and foreign policy determinations indirectly influence who is affected.

Secondary effects flow from these immediate impacts. Travellers whose documents are listed in Schedule 2, or who have passports with the disqualifying characteristics of Schedule 1, will need substitute documentation or evidence to be classified as holding an "eligible passport" for s 165 (where the Schedule itself specifies narrow exceptions, those exceptions identify routes to qualification, for example evidence of a separate right of re‑entry or of indefinite leave to remain in the United Kingdom: see Sch 2 items 4, 5 and 31; Sch 2 item 27; Sch 2 item 28). The instrument itself does not articulate consequences beyond determining eligibility; those consequences will follow from how section 165 operates in the Act and administrative practice, which the instrument does not set out.

The instrument is a statutory determination rather than a statutory scheme of duties and rights, but it creates binding administrative classifications that generate discrete obligations for decision‑makers and practical obligations for document holders. The instrument itself imposes no standalone criminal sanctions or pecuniary penalties, and it contains no express statutory duties in terms of performance obligations; rather it designates which documents qualify as an 'eligible passport' for the purposes of section 165 (s 6). From the text, the following duties and rights follow:

• Duty of decision‑makers to apply the instrument when construing 'eligible passport' in s 165. Section 6 is explicit: it is a determination "for the purposes of the definition of ‘eligible passport’ in section 165 of the Act". That language constrains the meaning of the statutory term, so officers deciding questions of eligibility under that section must treat the exclusions in Schedules 1 and 2 as excluding those passports from being 'eligible passports'. This is an administrative duty to follow the determination.

• Practical obligation on applicants or travellers to present passports or supporting evidence consistent with the instrument. Several Schedule 1 and Schedule 2 items specify exceptions where documentary evidence can remedy otherwise excluded documents. For example, Schedule 1(4) excludes temporary‑visa travel documents not endorsed, "or not accompanied by separate evidence of, a right of re‑entry to the issuing country or another country." Schedule 2 contains similar caveats for specific passports: Items 4, 5 and 31 exclude certain UK-styled passports "except where the passport contains a certificate or wet stamp stating that the bearer has indefinite leave to remain in the United Kingdom or the passport is endorsed with a right of re‑entry to the country of issue or another country." Item 27 excludes Taiwanese "compatriot" documents "except where the passport holder has evidence of a separate right of re‑entry into the issuing country or another country." Item 28 excludes Tongan National Passports "except where the bearer has satisfactory evidence of Tongan nationality." These provisions impose a documentary burden on the passport holder to secure and provide supplementary evidence if they wish their document to be treated as an 'eligible passport' for s 165.

• Right to be assessed against the instrumented criteria. Because the instrument is framed as a determination of meaning for section 165, a person presenting a passport has a right reflected in administrative process to have the passport assessed against the specific, listed characteristics and named exclusions set out in Schedules 1 and 2. That right is a procedural one: the instrument provides the criteria by which assessment must be made.

• Discretionary interactions with foreign policy and recognition. Schedule 1(5) and 1(6) explicitly make eligibility contingent on whether endorsement would indicate recognition contrary to Australian Government foreign policy, and whether the issuing entity is recognised as empowered to issue travel documents. Those provisions embed a right of the executive to determine eligibility by reference to recognition and foreign policy choices. The instrument itself does not set the content of foreign policy, but it assigns the executive’s recognition choices operative effect in passport‑eligibility determinations.

• Obligation to consider condition of the document. Schedule 1(2) requires assessment of physical integrity,damage that obscures identity details or missing pages such that identity cannot be conclusively confirmed makes the passport not an eligible passport. That places an evidential duty on the holder to present an intact document and on the decision‑maker to inspect the document.

Summarily, the instrument defines who must do what in documentary terms: decision‑makers must apply the exclusions, and holders of excluded passports must provide whatever evidence the Schedules prescribe (where an exception is permitted) if they wish their travel document to count as an 'eligible passport' under s 165.

The instrument contains no new criminal offences, civil penalties, or express enforcement regime within its text. It is a statutory determination made under section 175A of the Act (s 3) that alters the legal meaning of the term "eligible passport" for the purposes of section 165. The instrument’s text itself does not create penalties, nor does it prescribe enforcement measures,its role is definitional and classificatory.

Enforcement in practice therefore depends on how the Migration Act 1958 and delegated decision‑makers apply the term 'eligible passport' within the statutory and administrative framework that uses section 165. The instrument instructs decision‑makers to treat specified documents as not eligible; any downstream enforcement, prohibition, visa decision or administrative consequence will be the product of the Act and the administrative processes that implement it, not of this instrument directly. That is evident from the instrument’s express content: s 6 is limited to determining "for the purposes of the definition of ‘eligible passport’ in section 165 of the Act" which travel documents are 'eligible passports' and which are not. There is no provision in the instrument to impose fines, suspensions, or other sanctions for non‑compliance with the instrument itself.

Practical enforcement implications therefore arise through administrative application. For example, if an officer determines a person does not present an 'eligible passport' as defined by this instrument, the officer exercising powers under the Act will apply the Act’s consequences to that person. The instrument does not itself provide those consequences, and it does not instruct any particular sanction; it only supplies the classification that feeds into the Act. Users of the instrument should therefore consult the Migration Act and relevant agency practice notes or procedural manuals to identify the specific administrative outcomes that follow from a person not having an 'eligible passport' for s 165.

Additionally, Schedule 3 repeals the prior IMMI 14/079 instrument in full (Sch 3), so enforcement practice must relate to the 2018 instrument as the operative determination from commencement (Sch 3 item 1). The instrument does not specify transition arrangements beyond the repeal; any transitional practice will be a matter for administrative guidance.

The instrument is explicitly made under the Migration Act 1958,the Act,and is intended to operate solely to determine the meaning of "eligible passport" for the purposes of section 165 of that Act (see s 3, s 4 and s 6). Accordingly, its interaction with other laws is framed in the instrument by three mechanisms set out in the text:

1. Primacy within the Act’s definition process. The instrument is a determination made under s 175A of the Act; it is an instrument that sets the administrative meaning of a term used by the Act (s 6). Its direct legal effect is therefore to be read into the operation of section 165. The instrument does not purport to amend substantive provisions of the Act; instead it fixes the meaning of a term that the Act uses. Practitioners must therefore read the instrument alongside section 165 when applying the Act.

2. Reliance on recognition and foreign policy. Schedule 1(5) and Schedule 1(6) anchor part of the eligibility scheme to Australian Government foreign policy and recognition. Schedule 1(5) disqualifies "travel document or passport where endorsement of the document would indicate recognition of the issuing authority contrary to Australian Government foreign policy," and Schedule 1(6) disqualifies "travel document or passport issued by an entity which is not recognised by the Australian Government as empowered to issue travel documents." Those provisions create an operational link between this instrument and the executive’s recognition and foreign policy apparatus. The instrument delegates to those broader recognition decisions a role in determining passport eligibility: a travel document’s eligibility depends in part on whether the issuing authority is recognised by Australia.

3. Repeal of prior instrument. Schedule 3 repeals IMMI 14/079 (Eligible Passports Instrument 2014). That means the 2018 instrument replaces the earlier administrative determination, and the 2014 instrument no longer forms part of the applicable body of administrative determinations. Any legal operation that previously referenced IMMI 14/079 must now reference IMMI 18/002 (Sch 3).

Beyond the Act itself, the instrument does not reference other legislation by name, nor does it purport to displace or interact with statutory regimes outside the Migration Act. However, the Schedule 1(5) and 1(6) cross‑reference to foreign policy and recognition necessarily links passport eligibility to external executive determinations that may arise under the executive’s foreign relations powers, treaty practice or recognition policy; the instrument does not specify how those recognition decisions are to be made. Users should therefore be aware that passport eligibility under this instrument can depend on determinations that originate outside migration law: a document issued by an entity not recognised by the Australian Government is a per se exclusion under Sch 1.6.

Finally, several Schedule 2 exceptions require documentary proof such as a "certificate or wet stamp stating that the bearer has indefinite leave to remain in the United Kingdom" or "evidence of a separate right of re-entry to the issuing country or another country" (see Sch 2 items 4, 5, 27, 31). Those caveats import documentary practices (certificates, wet stamps, endorsements) into the instrument’s operation, and therefore interact with the evidentiary rules and administrative practices that govern how documents are accepted and verified in migration practice. The instrument does not prescribe standards of proof or verification processes; those remain matters for administrative practice under the Act.

The instrument itself contains its immediate amendment history and the textual instruments it replaces. The key amendment events recorded in the instrument are:

• The instrument’s own attribution and date: it is IMMI 18/002 and was made by the Secretary of the Department of Home Affairs, Michael Pezzullo, on 24 August 2018 (instrument heading and s 1).

• Commencement is the day after registration on the Federal Register of Legislation (s 2). The instrument therefore becomes operative upon registration the day after that event; the instrument text does not specify the registration date itself.

• Schedule 3 effects a repeal: it repeals in full the prior instrument IMMI 14/079 (F2014L01165), titled Eligible Passports Instrument 2014 (Schedule 3, item 1). The language is categorical: "The whole of the instrument" is repealed, and the item directs "Repeal the instrument."

• Schedules 1 and 2 are the substantive content changes relative to prior practice; although the instrument does not set out a trackable amendment history table within its text beyond the repeal, the presence of Schedule 3 indicates the 2018 instrument replaces the earlier 2014 instrument in total.

No further amendments or amendment dates are recorded in the instrument. There is no transitional wording or savings provision in the operative text (for example, nothing that preserves decisions made under the repealed instrument), so the instrument’s repeal of IMMI 14/079 is absolute in the text. Users should therefore treat IMMI 18/002 as the sole operative administrative determination on eligible passports for the purposes of section 165 from its commencement date.

If an administrative record of subsequent amendment or replacement exists elsewhere, it is not contained in the text provided; this instrument’s Schedule 3 is the only amendment history content in the supplied document.

The instrument as supplied does not record any litigation history, judicial interpretations, or references to cases. The text contains no citations to court decisions and does not summarise any litigation involving the instrument or its predecessor. The instrument’s Schedule 3 repeals the prior IMMI 14/079 in full, but the repeal does not itself contain or record legal proceedings.

Because the instrument operates by determining a statutory term under the Migration Act 1958 (s 6 made under s 175A), litigation could in practice arise over the operation of that term when applied to particular factual situations, or over whether an officer correctly classified a particular travel document under Schedule 1 or Schedule 2. However, the instrument’s text contains no record of such litigation, and it names no cases. Any judicial consideration, challenge or declaratory proceedings that involve the instrument or its predecessor would need to be located in external jurisprudence; nothing in the supplied text purports to report or summarise such litigation.

Accordingly, within this instrument’s own text the litigation record is silent: no cases are named and no judicial findings are reported. Users seeking litigation that interprets this instrument must therefore search external legal databases and court records; the instrument itself gives no internal history of litigation.

The instrument contains a number of specific features that create discrete traps for practitioners and applicants if they are not checked carefully. The following points are derived directly from the instrument’s text and show where documentary or procedural pitfalls are likely to arise.

1. Broad starting presumption but narrow exceptions. Section 6 declares that "all valid passports are 'eligible passports' with the exception" of those in Schedules 1 and 2. The danger is assuming this instrument creates a comprehensive positive list; instead, it creates a default rule subject to explicit exclusions. Practitioners must not rely on a non‑exhaustive mental list of excluded documents; they must consult Sch 1 and Sch 2 expressly each time.

2. Group passports: family is the carve‑out. Schedule 1(1) excludes "Group passports (eg. a passport issued to a sporting team) other than a family." The immediate pitfall is that some group or collective travel documents are eligible if they are family group passports, but are ineligible if they are any other type of group passport. Decision‑makers and applicants must be precise about the passport’s category.

3. Damage and identity confirmation. Schedule 1(2) excludes passports "which has been damaged, accidentally or otherwise, in such a way that the name, the photograph, the personal details or other important information have been obscured or pages are missing or where it is not possible to confirm conclusively the holder’s identity because of such damage." Documents with superficial scuffs may be fine, but where identity cannot be conclusively confirmed the instrument forbids treating the document as an eligible passport. Officers must inspect pages and photographs; applicants should present clean, intact documents.

4. Endorsements that render permanent‑visa documents "not valid for migration." Schedule 1(3) makes explicit that a travel document or passport endorsed by the issuing authority as "not valid for migration" for permanent visas is excluded. A passport bearing such an endorsement will not be an eligible passport for s 165.

5. Temporary‑visa re‑entry requirement. Schedule 1(4) excludes temporary‑visa travel documents that are not endorsed or "not accompanied by separate evidence of, a right of re‑entry to the issuing country or another country." For temporary‑visa holders, absence of re‑entry evidence can be decisive.

6. Foreign policy and recognition dependencies. Schedule 1(5) and 1(6) introduce reliance on Australian Government foreign policy and recognition: exclusions apply where endorsement would indicate recognition contrary to foreign policy, or where the issuing entity is not recognised by Australia as empowered to issue travel documents. This produces two practical traps: (a) eligibility may depend on recognition decisions made outside migration law, and (b) some travel documents included in Schedule 2 will reflect entities or authorities whose recognition status affects eligibility.

7. Specific Schedule 2 naming and narrow exceptions. Schedule 2 lists 33 specific documents. A number of items include narrow exceptions that require additional evidence to qualify: for example, certain UK-styled passports lacking EU reference are excluded except where the passport contains a wet stamp or certificate of indefinite leave to remain or a right of re‑entry (Sch 2 items 4, 5 and 31); Taiwanese "compatriot" documents are excluded except with evidence of separate right of re‑entry (Sch 2 item 27); Tongan National Passports are excluded except where the bearer has satisfactory evidence of Tongan nationality (Sch 2 item 28). Failure to provide the specific evidence listed will result in ineligibility.

8. Some entries are categorical. Many Schedule 2 items are categorical exclusions without exceptions (for example items such as Hutt River Province passport, Principality of Sealand passport, World Passport). Presenting one of those documents will, under this instrument, be treated as not an eligible passport for s 165.

9. Repeal of prior instrument has no transitional text. Schedule 3 repeals the entire IMMI 14/079 instrument, but the instrument contains no transitional or saving provisions. If administrative practice relied on transitional arrangements under the repealed instrument, they are not reflected here.

10. Evidence standards unspecified. The instrument requires "separate evidence" or "satisfactory evidence" in some places but does not define evidential thresholds or verification processes. That leaves officials discretion as to what constitutes satisfactory evidence, and may lead to inconsistent application without accompanying administrative guidance.

These are concrete procedural and evidential gotchas derived from the instrument’s text; addressing them requires careful document inspection, strict adherence to the Schedule lists and close attention to the narrowly framed exceptions.

Compliance with this instrument requires documentary precision by applicants and procedural diligence by decision‑makers. The instrument itself supplies the criteria; the following compliance checklist flows directly from its operative provisions (citations to the relevant Schedule or section are provided in parentheses).

For applicants and advisers (what passport holders should do):

1. Present an intact, valid passport. Ensure the passport is not physically damaged in a manner that obscures name, photograph, personal details, or pages (Sch 1.2). If the passport has damage, obtain a replacement passport from the issuing authority before presenting it for migration purposes.

2. Avoid using group passports unless they are family passports. If travelling on a group passport that is not family‑based (for example, a team passport), obtain an individual passport or confirm whether the document qualifies as a family group passport (Sch 1.1).

3. For permanent‑visa holders, check for endorsements that say the passport is "not valid for migration." If such an endorsement appears, seek to have it corrected by the issuing authority or obtain alternate documentation (Sch 1.3).

4. For temporary‑visa holders, ensure there is an endorsement of re‑entry or provide separate evidence of a right of re‑entry to the issuing country or another country (Sch 1.4). Documentary examples are not prescribed in the instrument, so provide documentation that evidences a right of re‑entry (for example, re‑entry permits, return visas, or similar documentation) and be prepared to explain the documentary basis to the decision‑maker.

5. If the passport is issued by an entity that might be unrecognised or might have recognition issues, obtain alternative recognised travel documents or confirmation of recognition from the issuing state or other acceptable evidence (Sch 1.5 and Sch 1.6). The instrument does not prescribe how a passport issuer’s recognition is to be proven; applicants should be ready to rely on official documentation from recognised authorities.

6. If holding a document listed in Schedule 2 that contains an explicit exception, produce the specific exceptionary evidence. For example:

   • UK-styled passports without EU reference: provide a certificate or wet stamp showing indefinite leave to remain or a right of re‑entry (Sch 2 items 4, 5 and 31).
   • Taiwanese "compatriot" documents: produce evidence of separate right of re‑entry (Sch 2 item 27).
   • Tongan National Passports: produce satisfactory evidence of Tongan nationality (Sch 2 item 28). Read the applicable Schedule 2 item and provide the precise evidence the instrument lists.

7. When in doubt, obtain recognised, standard passports. For many named excluded documents in Schedule 2 there is no exception; in those cases obtain a passport or travel document issued by an authority recognised by the Australian Government.

For decision‑makers and agencies (document assessment and operational compliance):

1. Apply the instrument when construing or applying section 165. The instrument is a determination made under s 175A and must be used to define "eligible passport" for s 165 (s 6). Treat the default rule,valid passports eligible,subject to Sch 1 and Sch 2.

2. Inspect documents carefully against Schedule 1’s characteristics. Check for damage (Sch 1.2), group passport type (Sch 1.1), endorsements stating "not valid for migration" for permanent visas (Sch 1.3), and the presence or absence of endorsements or separate evidence of rights of re‑entry for temporary visas (Sch 1.4).

3. Verify endorsements and wet stamps. Where Schedule 2 lists exceptions that require a certificate or wet stamp stating indefinite leave or a right of re‑entry (Sch 2 items 4, 5 and 31), verify the authenticity of those stamps or certificates through available verification procedures.

4. Establish recognition status where Schedule 1(5) or 1(6) might apply. If a passport’s eligibility turns on whether its endorsement would indicate recognition contrary to Australian Government foreign policy, consult agency guidance or the authoritative list of recognised issuing entities. The instrument does not set out the process for determining recognition, so agencies should adopt clear internal procedures referencing the executive’s recognition determinations.

5. Maintain a checklist and cross‑reference Schedule 2. Because Schedule 2 names specific excluded documents, build operational lists and training materials referencing those 33 items and their narrow exceptions where they exist. Treat Schedule 3’s repeal of the 2014 instrument as extinguishing prior text and ensure operational documents cite IMMI 18/002.

6. Document decisions and evidence. When determining that a passport is not eligible under the instrument, record the precise Schedule provision relied upon and the factual basis (e.g. missing pages; absence of re‑entry evidence; a named Schedule 2 item). This will provide an audit trail if the decision is reviewed under the Act.

7. Communicate clearly to applicants. Where eligibility depends on the applicant producing narrow documentary evidence (e.g. right of re‑entry, indefinite leave to remain, satisfactory evidence of nationality), specify the exact documentary requirement and provide reasonable opportunity to supply the evidence.

8. Train officers on ambiguous or borderline cases. Because the instrument leaves certain evidentiary standards undefined ("satisfactory evidence", "separate evidence"), agencies should prepare guidance on acceptable forms of evidence and verification steps to reduce inconsistency in application.

Following these steps aligns practices and documentary production with the instrument’s textual requirements (s 6, Sch 1, Sch 2, Sch 3). The instrument fixes eligibility criteria; compliance is achieved by ensuring documents and documentary evidence match those criteria and by recording the factual basis for eligibility determinations.