Migration (IMMI 18/089: Arrangements for Other Visas) Instrument 2018

The instrument defines three key terms. “Authorising email” means an email sent by a Department officer that authorises the applicant to make an application using the form, place and manner specified in the email. This is a discretionary communication: the instrument does not specify when an officer must or may send such an email, nor does it give the applicant any right to request one. For the Transit visa (Class TX) and, in a different form, the Resolution of Status visa (Class CD), the authorising email unlocks an alternative to the default internet lodgement method. The “Department” is defined as the Department of Home Affairs. “ImmiAccount” is defined as the Department’s interactive portal for online services available through its website. This is the mandatory lodgement platform for the Resolution of Status visa unless an authorising email has issued.

The concept of “immigration clearance” is imported from subsection 172(2) of the Migration Act 1958, and the instrument uses that concept to restrict when certain applications can be made. For example, Schedule 1 provides that an applicant for a Confirmatory (Residence) Class AK visa who is covered by paragraph 1111(2A)(b), (c), (d) or (e) must not make the application when in immigration clearance. Similarly, Schedule 3 provides that a dependent child who holds a Subclass 773 visa and applies for a Border (Temporary) Class TA visa must apply in Australia but not in immigration clearance, whereas all other Border visa applicants must apply in immigration clearance. This creates a trap: an applicant who misidentifies their subcategory or who attempts to lodge while physically in the immigration clearance area (for example, at an airport or seaport after arrival but before being cleared) will have an invalid application.

The “approved form” concept refers to a numbered paper form or an internet version of that form. The instrument refers to forms 852, 1364 (Internet), 871, and 876 (Internet). It does not reproduce the forms themselves; practitioners must obtain them from the Department’s website or ImmiAccount. The “place and manner” column in the schedules uses formulaic language such as “must be made in Australia, but not when the applicant is in immigration clearance” or “must be made in immigration clearance”. These are procedural conditions that must be satisfied at the time of lodgement. The instrument also distinguishes between “internet application” and “post” as two mutually exclusive lodgement methods, with the internet method being compulsory unless an authorising email has been issued.

For the Transit visa, Schedule 4 provides that the application must be made either as an internet application or, if the Department has sent an authorising email, in accordance with subsection 9(2) of the instrument. Subsection 9(2) requires the applicant to include a copy of the authorising email with the form and to submit the application within 24 hours of the time the authorising email was sent. This is a very short window and creates a real risk of invalidity if the applicant does not act immediately. The “24 hours” is a hard deadline; there is no provision for extension or waiver.

The instrument directly affects four categories of visa applicants. First, persons applying for a Confirmatory (Residence) Class AK visa. This includes applicants covered by paragraphs 1111(2A)(b) to (e) of Schedule 1 (which concern Norfolk Island residents or certain non-citizens with a special connection) and all other applicants for that visa class. The second category is applicants for a Resolution of Status (Class CD) visa, which is a permanent visa for certain non-citizens who have been found to engage Australia’s protection obligations but who previously held a temporary visa. Third, applicants for a Border (Temporary) Class TA visa. This includes dependent children of non-citizens who hold a Subclass 773 visa and all other applicants. Fourth, applicants for a Transit (Temporary) Class TX visa, which is a short-stay visa for persons transiting through Australia en route to another country. The instrument does not create any new visa classes; it only sets out procedural requirements for existing visa subclasses listed in Schedule 1 to the Regulations.

Migration agents and lawyers are indirectly affected because they must ensure their clients comply with the instrument’s lodgement requirements. Given that the instrument specifies different rules based on applicant subcategories, an agent must correctly identify which subcategory applies (for example, whether the applicant is a dependent child of a Subclass 773 holder, or a Norfolk Island applicant under paragraph 1111(2A)(b)-(e)) and then follow the corresponding place and manner. Errors can lead to application invalidity and wasted fees. The instrument also affects Departmental officers, who must process applications in accordance with the specified forms and lodgement methods and must decide whether to issue an authorising email. The authorising email mechanism gives officers significant discretion, and the instrument provides no criteria for its exercise.

The compliance burden falls asymmetrically. For the Resolution of Status visa, the default rule is that all applications must be made via ImmiAccount using form 1364 (Internet). If the Department writes to the applicant authorising a paper application, then the applicant may post the form to a specific GPO Box in Sydney. This creates uncertainty: an applicant who has not received an authorising email cannot validly lodge by post. Similarly, for the Transit visa, the default is internet application; only if the Department sends an authorising email can the applicant lodge by an alternative method, and then only within 24 hours. This makes the process unpredictable for applicants who may not have reliable internet access or who are in transit situations.

The instrument also affects Norfolk Island applicants specifically. The Schedule 1 table for the Confirmatory visa requires applicants covered by paragraph 1111(2A)(b)-(e) to post their application to a dedicated “Norfolk Island Visa Application” address at the Department’s GPO Box in Sydney. All other AK applicants must be in Australia (but not in immigration clearance) to apply; they are not required to post to the Norfolk Island address. This disparate treatment may reflect the special immigration status of Norfolk Island, but it imposes a distinct compliance burden on those applicants.

The instrument imposes several duties on applicants. The primary duty is to use the correct approved form. Under section 6 (for AK), section 7 (for CD), section 8 (for TA) and section 9 (for TX), each visa class has a designated form number. Using a different form will likely render the application invalid. For example, a Class CD applicant must use form 1364 (Internet) through ImmiAccount (section 7(1)). If the Department sends an authorising email, the applicant may use form 1364 but must post it (section 7(2)). The duty to use the correct form is strict; there is no provision for accepting alternative forms even if they contain the same information.

The second duty is to lodge the application in the prescribed place and manner. This may be via ImmiAccount, by post to a specific address, or in person at immigration clearance. The schedules specify which method applies to each applicant subcategory. For Border (TA) applicants who are dependent children of Subclass 773 holders, the application must be made in Australia but not in immigration clearance. All other TA applicants must be in immigration clearance when they apply. This distinction is crucial: a dependent child who applies at the airport after being cleared will be out of jurisdiction, while a non-dependent child who applies before being cleared will be valid. The instrument creates no “cure” provision for lodging at the wrong place.

For Transit visa applicants, the duty includes a strict time limit if an authorising email is used. Subsection 9(2) requires the application to be submitted within 24 hours of the time the authorising email was sent. The 24-hour period runs from the time the email was sent, not from the time the applicant reads it. There is no exception for weekends, public holidays, or technical delays. The applicant must also include a copy of the authorising email with the application. This imposes a documentary duty that may be overlooked.

The instrument also creates limited rights. An applicant has the right to apply via the internet for the Transit visa and the Resolution of Status visa without seeking prior authorisation. For the Transit visa, the internet option is the default and no authorisation is required. For the Resolution of Status visa, internet application via ImmiAccount is the default. The right to use an alternative method arises only if the Department sends an authorising email. The applicant has no right to demand an authorising email, nor any right to review the Department’s decision not to send one. This is a one-way discretion entirely in the hands of the Department.

The instrument’s restrictions on applying while “in immigration clearance” impose a procedural prohibition that operates as a condition of validity. The note to section 4 reminds the reader that subsection 172(2) of the Migration Act 1958 defines when a person is in immigration clearance. An applicant who is physically present in that zone (for example, at an airport lounge after disembarkation but before passport control) must not apply for certain visas. This restriction is absolute and does not depend on whether the applicant knew they were in immigration clearance. It creates a geographic compliance trap that may catch unwary applicants.

The instrument itself does not create any civil or criminal penalties. It is a legislative instrument made under the Migration Regulations, and the penalty for non-compliance is not a fine or imprisonment but rather application invalidity. Under section 46 of the Migration Act 1958, an application for a visa is not a valid application unless it is made in the prescribed manner. The prescribed manner includes the approved form, place and manner specified by an instrument under subregulation 2.07(5). Therefore, if an applicant uses the wrong form, lodges at the wrong address, or applies while in immigration clearance when prohibited, the application is invalid and cannot be considered by the Department. The application fee (if any) is likely not refundable, and the applicant would need to reapply with a correct application, possibly losing time, incurring additional costs, and potentially facing changed visa criteria or a change in personal circumstances.

Enforcement of the instrument is indirect. The Department’s officers are required to check compliance with the instrument as part of processing. If an application is lodged by post but the applicant did not have an authorising email, the Department will presumably refuse to accept it as valid. The instrument does not oblige the Department to notify the applicant of the invalidity or to give an opportunity to resubmit. In practice, the Department may return the application, but the instrument does not require that. The authorising email mechanism also creates an enforcement risk: if an applicant receives an authorising email but does not include a copy with the application (for a Transit visa), the application may be deemed not to have been made in accordance with subsection 9(2) and therefore invalid.

Fraud risks are present. A person could falsely claim to have an authorising email, but the Department would be able to verify this. The instrument does not impose a specific penalty for misrepresentation, but the general provisions of the Migration Act (such as section 234 for providing false documents) apply. The compliance burden is heightened by the 24-hour limit for Transit visa applications made under authorising email. An applicant who misreads the time zone or who experiences a technical delay in printing the email could miss the deadline. The instrument offers no relief.

The instrument also affects the Department’s own enforcement obligations. If the Department processes an application that was not made in the prescribed manner, the resulting visa grant could be invalid and subject to cancellation under section 109 of the Migration Act. Officers therefore have a duty to check compliance. The differentiation between applicant subcategories (especially for Border and Confirmatory visas) means that officers must correctly identify the applicant’s circumstances at lodgement. An officer who incorrectly classifies an applicant (for example, treating a dependent child as an “other applicant”) could apply the wrong place and manner, leading to an invalid grant.

The instrument sits within a hierarchy of migration legislation. Its direct statutory basis is subregulation 2.07(5) of the Migration Regulations 1994, which empowers the Minister to approve forms and specify places and manners for visa applications. The Regulations themselves are made under the Migration Act 1958. The instrument does not override the Act or the Regulations; it supplements them by filling in details that the Regulations leave blank. For example, Schedule 1 to the Regulations creates the Confirmatory (Residence) Class AK visa at item 1111, but it does not itself specify the approved form or the place and manner for that visa. The instrument supplies those details for items 1111, 1127AA, 1201 and 1224.

The instrument also interacts with the Migration Act’s definition of “immigration clearance” in subsection 172(2). That subsection defines when a person is in immigration clearance. The instrument incorporates that definition by reference (see the note to section 4). This means that the question of whether an application is validly made depends on the state of the applicant’s physical location relative to the immigration clearance area, as interpreted by the courts. The instrument does not modify that definition; it simply uses it as a condition for certain applications.

For the Confirmatory visa, the instrument distinguishes between applicants covered by paragraphs 1111(2A)(b), (c), (d) or (e) of Schedule 1 to the Regulations and all other applicants. Those paragraphs are not reproduced in the instrument; a practitioner must cross-refer to the Regulations to determine which applicants fall into that subcategory. The instrument therefore creates an interaction point between Schedule 1 of the Regulations and the instrument. Similarly, for the Border visa, the instrument refers to “a dependent child of a non-citizen; and the holder of a Subclass 773 visa”. That subcategory is defined by reference to the visa subclass, which is itself created by the Regulations.

The instrument does not interact with the Migration Act’s provisions on visa validity in section 46, but it effectively determines the “prescribed manner” for the visas it covers. If an applicant fails to comply with the instrument, the application will be invalid under section 46(1)(b). The instrument also interacts with the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) because a decision to refuse to accept an application as valid may be judicially reviewable, although the instrument itself is likely a legislative instrument not subject to ADJR in its own right.

There is no interaction with state or territory laws; migration is a Commonwealth power. The instrument does not mention any other Commonwealth instruments, such as the Migration (Visa Application) Charge Act or fees, so it sits alongside those separately.

The instrument is titled “IMMI 18/089” and was made in 2018. The source text provided does not include any amendment history, and no subsequent amending instruments are referred to. It is safe to assume that the instrument has been amended at least once since its commencement, but we cannot name any such amendments because they are not in the source. Practitioners should check the Federal Register of Legislation for the current version. The instrument’s legal effect depends on the version in force at the time of application. Given that immigration instruments are frequently updated (for example, to update forms, addresses, or add new visa subclasses), it would be risky to rely on this text without confirming it is up to date.

The original instrument was made under subregulation 2.07(5) of the Migration Regulations 1994, which itself has been amended many times. Changes to the Regulations could affect the instrument’s operation. For example, if Schedule 1 to the Regulations is amended to add new items or modify existing items (such as item 1111), the instrument may need to be updated to reflect those changes. The instrument’s schedules reference specific items (1111, 1127AA, 1201, 1224), so if those items are renumbered or repealed, the instrument would become inoperative for those visas until amended.

The Department may also issue a new instrument that expressly or impliedly revokes IMMI 18/089. Since this is not an Act of Parliament, it can be amended or repealed by a later legislative instrument made by the Minister or a delegate. The instrument does not contain a sunset clause, but it may be subject to the Legislation Act 2003 provisions on automatic repeal. Without amendment history in the source, we cannot discuss specific changes.

The source text does not refer to any court cases. It is a legislative instrument and does not itself generate litigation; litigation arises from decisions made under it. However, cases about the validity of visa applications frequently involve arguments about whether the applicant used the correct form or lodged at the correct place. The Federal Court and the Administrative Appeals Tribunal have considered similar instruments. Common issues include: whether an application was “made” when it was received or when it was posted; whether a form was the “approved form” if it was an internet version that did not exactly match the paper version; and what constitutes “immigration clearance” under section 172(2).

The instrument’s authorising email mechanism could also give rise to litigation if the Department refuses to send an email or sends an email with ambiguous instructions. An applicant might argue that the Department’s failure to send an authorising email was unreasonable, but the instrument does not create a duty to send one, so such an argument would be weak. There may also be disputes about whether an applicant strictly complied with the 24-hour requirement for Transit visas, for example if the applicant argued that the email was sent at an unusual hour or that the Department’s email server was delayed.

Given the instrument’s procedural nature, the most likely litigation is about validity of applications. Because the instrument is not a primary source of rights, it is unlikely to be challenged directly. Instead, it will be cited in litigation about visa refusal or cancellation where the issue is whether a valid application was ever made. No cases are named in the source, and we cannot invent them. The absence of citation does not mean there are no cases; it simply means the instrument itself has not been the subject of judicial consideration in the provided material.

The instrument contains several traps for the unwary. The most dangerous is the “immigration clearance” restriction. For Confirmatory (AK) visa applicants covered by paragraphs 1111(2A)(b)-(e) and for Border (TA) visa applicants who are dependent children of Subclass 773 holders, the application must not be made when the applicant is in immigration clearance. For all other Border visa applicants, the application must be made in immigration clearance. This is not intuitive. An applicant who is travelling and tries to lodge at an airport before leaving Australia could be in the wrong location. The definition of immigration clearance under section 172(2) includes the area before the border control point, so a person who has not yet passed through passport control is in clearance. A dependent child who attempts to lodge while waiting to board a domestic flight after being cleared may inadvertently be out of clearance and thus invalid. The opposite applies for other Border applicants: they must be in clearance, which may be difficult if they are not physically at an airport.

The 24-hour time limit for Transit visa applications made under an authorising email is extremely tight. The time runs from when the email was sent, not when it was received or read. If the email is sent at 11.30 pm, the applicant must submit the application by 11.30 pm the next day. There is no exception for technical issues, sleeping hours, or inability to access the internet. The applicant must also include a copy of the authorising email with the application. If the application is made by post, the applicant must ensure the email copy is enclosed, and the application must be posted within 24 hours. Given postal delays, it may be practically impossible to comply if the authorising email is sent late in the day.

The “authorising email” concept appears in two places: section 7(2) for the Resolution of Status visa and section 9(2) for the Transit visa. For the Resolution of Status visa, the authorising email does not impose a time limit; it just allows the applicant to use post instead of ImmiAccount. For the Transit visa, it imposes both a 24-hour limit and a requirement to include a copy of the email. A practitioner handling both visa types must be careful to check which rules apply. The instrument does not define “authorising email” consistently; for the Resolution of Status visa, it says “if an officer of the Department has written to the applicant authorising”, which could be a letter rather than an email, but the definition in section 4 only defines “authorising email”. This ambiguity could be a trap.

The Confirmatory visa schedule has two rows: one for applicants covered by paragraph 1111(2A)(b)-(e) and one for all other applicants. The place and manner for the first group is “not be made when the applicant is in immigration clearance; and be made by post” to the Norfolk Island Visa Application address. For the second group, it simply says “An application must be made in Australia, but not when the applicant is in immigration clearance.” This second group does not have a postal address specified; they presumably must apply using the standard method for Class AK, which may be via ImmiAccount or another form. The instrument does not say what method “all other applicants” use; it just says they must be in Australia and not in clearance. This is ambiguous and may require reference to the Regulations.

The Border visa schedule also has two rows: dependent child of Subclass 773 holder (must apply in Australia but not in clearance) and all other applicants (must apply in clearance). The “all other applicants” row does not specify where in Australia they must be, but the place in Column 4 is simply “Application must be made in immigration clearance.” This seems to imply that the applicant must be physically in the immigration clearance zone at the time of application. This is an unusual requirement and would be practically challenging for an applicant who is not travelling internationally.

Compliance with IMMI 18/089 requires meticulous attention to the visa subclass, the applicant’s personal circumstances, and the specific lodgement rules. Begin by identifying which visa class the applicant seeks: Confirmatory (Residence) Class AK, Resolution of Status Class CD, Border (Temporary) Class TA, or Transit (Temporary) Class TX. Then check the instrument for the relevant section and schedule.

For a Confirmatory (Residence) Class AK visa: determine whether the applicant is covered by paragraph 1111(2A)(b), (c), (d) or (e) of Schedule 1 to the Regulations. This requires checking the Regulations to see what those paragraphs say. If the applicant is in that subcategory, the approved form is 852. The applicant must not be in immigration clearance when applying, and must post the application to: Norfolk Island Visa Application, Department of Home Affairs, GPO Box 9984, SYDNEY NSW 2001. If the applicant is not in that subcategory (i.e., all other applicants), the form is also 852, but the application must be made in Australia (and not in immigration clearance). The instrument does not specify the manner for this second group beyond being in Australia; it may be that they can apply via ImmiAccount or by post, but the safest approach is to check the Department’s website or other instruments.

For a Resolution of Status (Class CD) visa: the default rule under section 7(1) is that the application must be made using form 1364 (Internet) through ImmiAccount. Do not lodge by post unless an officer of the Department has first written to the applicant authorising the use of form 1364 by post. If such authorisation is received, the application must be posted with sufficient prepaid postage to: Protection Visas, Department of Home Affairs, GPO Box 9984, SYDNEY NSW 2001. The applicant should keep a copy of the authorising letter.

For a Border (Temporary) Class TA visa: check if the applicant is a dependent child of a non-citizen and the holder of a Subclass 773 visa. If yes, use form 871. The application must be made in Australia but not in immigration clearance. If the applicant is not in that subcategory (i.e., all other applicants), use form 871, and the application must be made in immigration clearance. This means the applicant must physically be in the immigration clearance area (such as at an airport border control) at the time of application. The instrument does not specify whether the application is made on paper or electronically; presumably it is made in person at the clearance point. Practitioners should confirm with the Department.

For a Transit (Temporary) Class TX visa: the default is to make an internet application using form 876 (Internet) via ImmiAccount. If the Department sends the applicant an authorising email, the applicant may apply using form 876 (not internet) and must follow subsection 9(2). This requires: including a copy of the authorising email with the application, and submitting the application within 24 hours of the time the authorising email was sent. The application must be submitted in accordance with the directions in the email (for example, by post or in person). It is critical to note the time of the email and to lodge before the 24-hour deadline. If the 24-hour deadline is missed, the application is invalid unless an internet application is still possible (but the authorising email presumably overrides the internet method). The safest course upon receiving an authorising email is to immediately prepare the application and lodge it, ensuring the email copy is attached.

General compliance steps: always verify the current version of the instrument on the Federal Register of Legislation. Check the Department’s website for any updates to forms or postal addresses. Keep records of all authorising emails and acknowledgements of lodgement. Do not assume that a previous application method still applies. If in doubt, contact the Department for written confirmation, but note that the instrument does not oblige the Department to give advice. The compliance burden is on the applicant to get it right first time.