Migration (LIN 19/214: Regional Certifying Bodies) Instrument 2019

The instrument turns on three legal concepts embedded in its text: specification, regional responsibility, and temporal application.

1. Specification. Section 4(1) operates as a legal specification: for the purposes of paragraph 2.72C(19)(a) of the Regulations, each body listed in the tables in s 4(3) is specified as a Regional Certifying Body. The instrument is therefore an exercise of the ministerial specification power delegated by subregulation 2.72C(20) of the Regulations, which the instrument expressly cites as its authority (s 3).

2. Regional responsibility. Section 4(2) does not itself define geographic boundaries. Instead it assigns to each listed Regional Certifying Body responsibility for a part of Australia that is a designated regional area "listed in an instrument in writing made under the Regulations". That cross-reference indicates the geographic mapping of responsibilities is performed by another instrument under the Regulations. The instrument therefore separates the decision of which organisations are bodies (this instrument) from the decision of precise regional boundaries (the separate instrument under the Regulations).

3. Temporal application. Section 5 sets the timing rules. The instrument applies to nomination approvals and visa applications tied to the Subclass 494 stream where those applications are made on or after 16 November 2019. Where a visa application is made on or after 16 November 2019, the instrument applies only if the related nomination approval application is made on or after that date (s 5(2)). The commencement clause (s 2) ties the instrument’s commencement to that of Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019; the instrument does not itself set a standalone commencement date.

Structurally, the instrument lists eight state/territory tables (s 4(3)) that identify the specified bodies. The bodies include a mix of Regional Development Australia entities, state government departments, local councils, chambers of commerce, regional development associations and designated state government directorates. The instrument therefore uses organisational specification rather than a generic office-holder designation or a function-based test.

Because the instrument is an identifying/specifying instrument it does not set out functions, processes, or procedures for how a Regional Certifying Body must exercise responsibilities, nor does it define sanctions or discretionary criteria. Those procedural details, if any, are in the Regulations or other instruments referenced by the Regulations.

The instrument affects three categories of actors directly and other parties indirectly.

Directly affected

• Named organisations. Each body listed in s 4(3) is directly affected because the instrument legally specifies them as Regional Certifying Bodies for the relevant regulatory provision (s 4(1)). The tables name organisations across New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory. The types of named organisations include Regional Development Australia committees, state government departments, city and rural councils, chambers of commerce, regional development associations and specified directorates (s 4(3), Tables 1-8). Each listed body thereby gains the formal status tied to paragraph 2.72C(19)(a) of the Regulations.

• Applicants for approval of a nomination for Subclass 494 visas. Section 5(1) specifies the instrument applies to an application for approval of a nomination for a Subclass 494 visa made on or after 16 November 2019. Any employer or nominator lodging such an application on or after that date will be subject to the regulatory scheme as it incorporates these specified RCBs.

• Subclass 494 visa applicants. Section 5(2) brings visa applicants within the instrument’s scope where the visa application is made on or after 16 November 2019 and the related nomination approval application is made on or after that date. In practice, an intended migrant lodging a Subclass 494 visa application will be affected if the nomination was made on/after 16 November 2019.

Indirectly affected

• Employers and nominators who rely on regional certification. Because RCBs are specified in order to perform a role under paragraph 2.72C(19)(a) of the Regulations, employers and other nominators who must secure regional certification will be affected in their choice of which organisation to approach for certification. The instrument does not list procedural requirements, but it defines which bodies the Regulations will accept for that regulatory purpose.

• State and local governments and regional industry groups. The instrument elevates the listed organisations into formal status under the Regulations, potentially changing their administrative load and interaction with the Department. Entities not listed but operating in regional development, local government or chambers of commerce are affected by omission: they are not specified as Regional Certifying Bodies under this instrument and therefore cannot act in that specified role unless subsequently specified by another instrument.

• Administrators and case officers in the Department. The Department must recognise these specified bodies when administering paragraph 2.72C(19)(a) of the Regulations, and must consult the instrument to determine which body’s certification applies to a particular nomination or visa application given designated regional area boundaries are set elsewhere (s 4(2)).

Who does not become affected automatically

• The instrument does not purport to change immigration eligibility rules or create new visa categories beyond the specified application scope. It does not create direct obligations on applicants other than subjecting particular nomination and visa applications to the regime that incorporates these specified RCBs (s 5).

Overall, the instrument reassigns recognition and administrative responsibility to named bodies for a discrete element of the Subclass 494 nomination process and thereby reallocates administrative interactions and potential transaction costs to those bodies, applicants and the Department.

The instrument is primarily a specifying instrument; it does not itself enumerate operational duties, discretionary criteria, or express rights such as appeal rights. However, it creates legal consequences that imply duties and entitlements embedded through the Regulations it references. The instrument’s key operational points, grounded in its text, are:

Specification duty. By operation of s 4(1) the listed bodies are specified as Regional Certifying Bodies for the purposes of paragraph 2.72C(19)(a) of the Regulations. That specification is a legal fact rather than an operational duty in this instrument, but it triggers the bodies’ role under the Regulations, which the instrument cites as the source of authority (s 3). Any duties and rights that attach to a Regional Certifying Body are therefore determined by the Regulations and instruments made under them, not by LIN 19/214 itself.

Responsibility for region. Section 4(2) assigns each Regional Certifying Body responsibility for a part of Australia that is a designated regional area listed in an instrument in writing made under the Regulations. LIN 19/214 therefore confers the right to be treated as the appropriate certifying body for the specified regional area and, correspondingly, the responsibility to serve that regional area in whatever manner the Regulations and relevant administrative instruments prescribe. The instrument does not define the manner or standards by which the bodies must operate; it only states the legal mapping to regional areas.

Temporal application of those duties and rights. Section 5 conditions the practical invocation of any duties and rights that flow from being a Regional Certifying Body on the timing of nomination and visa applications. The bodies’ roles are triggered for applications for approval of a nomination for Subclass 494 visas made on or after 16 November 2019, and for visa applications made on or after that date where the related nomination is also made on or after that date (s 5(1)-(2)). Applications before that date are outside the instrument’s scope.

No internal procedural duties specified. LIN 19/214 contains no procedural instructions, no timelines, no information-request powers, and no reporting obligations for the listed bodies. Any such duties must be derived from paragraph 2.72C(19)(a) of the Regulations or other instruments under the Regulations. Similarly, LIN 19/214 does not create appeal rights, review mechanisms, or private causes of action; those matters would be governed by the Migration Regulations, Migration Act or other administrative law instruments as applicable.

Implication for decision-making rights of applicants. Because the instrument determines which bodies are the recognised certifying bodies, applicants and nominators have the right to seek certification only from those specified bodies for the relevant regional area. The instrument thereby shapes the set of legitimate interlocutors in the nomination process, affecting procedural routes available to applicants, though it does not articulate substantive decision criteria.

In short, the instrument confers legal status on named organisations and links their status to specified regional responsibilities and a temporal application window. The substantive duties, rights, standards and review rights that flow from that status are not stated in this instrument and must be located in the Regulations and related instruments that LIN 19/214 references.

The instrument contains no penalty provisions and does not itself establish enforcement mechanisms. Its text is confined to specification of organisations, regional responsibility mapping, commencement and application clauses (see s 1-5). There are three practical consequences for penalties and enforcement that follow from the instrument’s nature:

No new sanctions in LIN 19/214. Sections 1-5 do not create offences, fines, civil sanctions, or express enforcement tools. The instrument’s legal effect is to specify which bodies count as Regional Certifying Bodies for a particular regulatory paragraph; it does not add penal or enforcement apparatus.

Enforcement will depend on the Regulations and administrative practice. Because the instrument operates under the authority of subregulation 2.72C(20) of the Regulations (s 3), any enforcement consequences for failing to comply with certification requirements, or for misrepresentations relating to certification, will derive from the Migration Regulations, the Migration Act or other instruments that prescribe offences, civil penalties or administrative sanctions. LIN 19/214 does not itself delineate those regimes or how they will be applied.

Administrative reliance and attribution. The Department and decision-makers will rely on the presence or absence of a certification from a listed Regional Certifying Body when assessing applications that fall within the temporal scope (s 5). If a person claims to have a certification from a body not listed in s 4(3), the Department may treat that certification as outside the recognised set for paragraph 2.72C(19)(a) of the Regulations. Any consequences for such a treatment,refusal, request for further information, or other administrative steps,arise from the Regulations and policy settings rather than from this instrument.

Practical enforcement risk for listed bodies. Although LIN 19/214 does not prescribe enforcement, being specified as an RCB may expose listed bodies to administrative scrutiny in relation to how they perform their role under the Regulations. The instrument itself does not set standards, accountability mechanisms, or reporting obligations; those would need to be found in the Regulations or departmental guidelines.

In summary, LIN 19/214 is a non-penal specifying instrument. Any penalties, sanctions or enforcement pathways applicable to Regional Certifying Bodies, nominators or visa applicants must be identified in the Migration Regulations, the Migration Act or policy instruments, not in this instrument.

LIN 19/214 is explicitly an instrument made under subregulation 2.72C(20) of the Migration Regulations 1994 (s 3). Its interaction with other legal instruments can be parsed from the cross-references present in the text:

Primary interaction: the Migration Regulations 1994. The instrument specifies bodies "for the purposes of paragraph 2.72C(19)(a) of the Regulations" (s 4(1)) and cites the Regulations as the source of delegated authority (s 3). Thus LIN 19/214 operates as an exercise of a power provided by the Regulations and must be read in that statutory context. The instrument does not substitute for, modify substantive requirements in, or contradict the Regulations. Instead it supplies a list that the Regulations will rely upon when applying paragraph 2.72C(19)(a).

Geographic mapping by separate instrument. Section 4(2) explicitly provides that each Regional Certifying Body listed has responsibility for a part of Australia "that is a designated regional area listed in an instrument in writing made under the Regulations". The instrument therefore interacts with at least one other instrument under the Regulations that sets the geographic boundaries of designated regional areas. That other instrument determines which RCB’s responsibility applies to a particular locality. LIN 19/214 and the separate regional-area instrument must be read together to determine the operative certifier for any given address or local government area.

Commensurate timing with Migration Amendment Regulations. Section 2 states that the instrument commences "at the same time as Schedule 2 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019". Thus LIN 19/214 is temporally linked to those Amendment Regulations. The combined effect of those Regulations (which are external to this instrument) and LIN 19/214 will determine the full operative framework for the Subclass 494 stream from the date they commence.

Administrative law and statutory interpretation. As an instrument made under delegated power, LIN 19/214 will be subject to the usual principles of statutory interpretation and administrative law applicable to instruments under the Migration Regulations. That includes judicial review principles where applicable, though this instrument contains no procedural rights or internal decision-making that would itself be reviewed independently of the decision-making undertaken by the Department under the Regulations.

No express cross-reference to other Commonwealth or state statutes. LIN 19/214 does not expressly interact with state or local government statutes, industrial instruments, or other Commonwealth Acts. The listed bodies include state departments and local councils; any interactions between their responsibilities under this instrument and their duties under state law will arise from their organisational roles rather than from this instrument’s text.

In sum, LIN 19/214 functions as a piece within the regulatory architecture established by the Migration Regulations. It supplies named organisations to be treated as Regional Certifying Bodies and must be used in tandem with the regional-area instrument and the Migration Amendment Regulations cited for commencement.

The instrument itself contains minimal historical metadata. The instrument identifies its name and citation (s 1: "This instrument is the Migration (LIN 19/214: Regional Certifying Bodies) Instrument 2019" and "may be cited as LIN 19/214") and records its date and maker: it is dated 8 November 2019 and signed by David Coleman, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (cover sheet). Section 2 ties commencement to Schedule 2 of the Migration Amendment (New Skilled Regional Visas) Regulations 2019 rather than setting an independent commencement date.

There is no schedule of amendments within the instrument text provided. The instrument does not list prior versions, repeals or prior instruments that it replaces. There is no in-text evidence of earlier or later instruments that amend s 4(3) lists, and nothing in the provided text indicates subsequent updates. Any future changes to which bodies are specified would require the making of a further instrument under the same delegated authority (subregulation 2.72C(20) of the Regulations), since s 4(1) specifies bodies "for the purposes of paragraph 2.72C(19)(a) of the Regulations". The instrument therefore constitutes the operative list as at the instrument’s date and would be varied only by a subsequent specifying instrument.

The text does not contain transitory or saving provisions, nor does it list repeals of earlier naming instruments. If there had been a predecessor instrument naming different RCBs, that repeal or replacement is not recorded in the supplied text. Similarly, there is no express sunset clause; the instrument remains in force in relation to the specified applications until amended or repealed in accordance with the Regulations and relevant legislative procedures.

For practical purposes, users should treat the instrument as the authoritative list dated 8 November 2019, applicable from the commencement point linked to the Migration Amendment Regulations (s 2), and check the legislative register or Commonwealth Gazette for any subsequent instruments that add, remove or replace listed bodies.

The instrument as supplied contains no reference to litigation, challenges, or judicial consideration. There are no case citations, no notes of appeals, and no statements in the text indicating that the instrument has been subject to judicial review or judicial pronouncement.

Because LIN 19/214 is a specifying instrument under the Migration Regulations (s 3), any litigation that would involve this instrument would most likely arise contextually: for example, in judicial review proceedings challenging an administrative decision that relied on or interpreted a certification from an organisation listed in s 4(3), or challenging the Department’s treatment of a certification from an entity not listed. However, the instrument itself contains no recorded litigation history.

Users seeking to establish whether LIN 19/214 has been the subject of litigation should consult court databases, the Federal Court and High Court records, the Administrative Appeals Tribunal records and the consolidated legislative instruments register. Those sources lie outside the text of the instrument and are not referenced in the instrument’s content.

In the absence of any litigation references in LIN 19/214, this section records only that the instrument does not document any litigation and contains no internal discussion of legal challenges.

LIN 19/214 is short and appears administratively straightforward, but several practical and legal pitfalls arise from its text and structure. These are concrete issues to watch for because they affect compliance, administrative routing and legal certainty.

1. Responsibility versus geographic boundaries. Section 4(2) assigns responsibility for "a part of Australia that is a designated regional area listed in an instrument in writing made under the Regulations". The instrument does not itself publish or reproduce the geographic boundaries. Practitioners must therefore cross-check the separate instrument under the Regulations that lists designated regional areas to determine which RCB has responsibility for a particular address. Assuming responsibility aligns with the named body’s title (for example, equating "Central NSW - Regional Development Australia, Central West Inc" with specific LGAs) risks misidentification if the regional-area instrument maps boundaries differently.

2. Temporal trigger is precise. The instrument applies only to nomination approval applications and related visa applications made on or after 16 November 2019 (s 5). An application a single day earlier will fall outside this instrument’s scope. Ensure filing dates and the sequencing of nomination approval and visa applications are strictly checked because s 5(2) conditions application of the instrument to visa applications on the date of the related nomination application.

3. Multiple bodies in a single state. Some states have numerous listed bodies (for example, New South Wales lists 14 items in Table 1). That multiplicity may require additional steps to identify the correct RCB if the regional-area mapping is not intuitive. Do not assume that a state government department listed covers an entire state; the instrument ties each body to a designated regional area as per another instrument (s 4(2)).

4. Types of organisations vary. The list mixes state departments, councils, RDAs, chambers of commerce and industry groups. The instrument does not standardise the organisational form, capacity, or internal processes of listed bodies. Practitioners should verify each body’s administrative contacts, documentation procedures and any delegation instruments they may have in place.

5. No standards or procedures in the instrument. LIN 19/214 does not prescribe how a Regional Certifying Body must conduct certification, what evidence is required, timelines, fees, or review processes. Expect administrative policy, departmental guidance, or the Migration Regulations to provide the procedural detail. Relying solely on LIN 19/214 for procedure will be insufficient.

6. Changes require a further instrument. Because LIN 19/214 specifies bodies under the authority in the Regulations, any change to the list must be made by a later instrument exercising the same power. Do not assume ad hoc substitutions or informal recognitions will be effective.

7. No penalties or supervisory mechanisms in this instrument. The instrument does not create accountability mechanisms, reporting obligations, or sanctions. If oversight, independence, or conflict-of-interest concerns arise about a listed body, remedies and obligations must be sought in the Regulations or other applicable legal instruments.

8. Omission risk. Organisations operating in a region but not listed are not RCBs for the purposes of paragraph 2.72C(19)(a). That omission has practical consequences for nominators and applicants who might otherwise have presumed certifying status.

9. Commencement dependency. The instrument’s commencement is linked to Schedule 2 of a separate Regulations instrument (s 2). Determining the exact operative date therefore requires consulting that Schedule’s commencement. Administrative processes that rely on LIN 19/214 should confirm when Schedule 2 commenced.

10. Potential mismatch between organisational name and area. The body name (for example a chamber with a city name) does not in itself confirm the full regional boundary for which it is responsible. Verify mapping rather than rely on naming conventions.

These "gotchas" are not speculative; they follow directly from the instrument’s structure (s 2, s 4(2)-(3), s 5). Addressing them requires cross-referencing the Migration Regulations, the instrument that lists designated regional areas, departmental practice notes and direct contact with the named bodies.

Compliance with the legal effects of LIN 19/214 requires actions by three principal groups: applicants and nominators, the listed Regional Certifying Bodies, and Departmental administrators. Because the instrument is declaratory/specifying, compliance focuses on procedural alignment with its scope, dates and the identification of the correct certifier.

For applicants and nominators (employers, sponsors)

• Check timing. Ensure the date of submission of any application for approval of a nomination for a Subclass 494 visa is on or after 16 November 2019 if you intend LIN 19/214 to apply (s 5(1)). For visa applications, ensure that the related nomination approval application is also on or after 16 November 2019 to bring the visa application within the instrument’s scope (s 5(2)). Record and retain proof of lodgement dates.

• Identify the correct RCB. Do not assume a certifier based on organisational name. Cross-reference the designated regional area instrument (the "instrument in writing made under the Regulations") to confirm which of the listed bodies in s 4(3) has responsibility for the applicant’s location (s 4(2)). Where uncertainty exists, contact the Department or the listed bodies for clarification before lodging paperwork.

• Seek certification only from listed bodies. For the purposes of paragraph 2.72C(19)(a) of the Regulations, certification should be sought only from the bodies specified in s 4(3). A certification produced by an entity not listed in s 4(3) will not be within the set of RCBs specified by this instrument.

• Prepare for procedural requirements in Regulations/policy. LIN 19/214 does not state documentary requirements. Obtain and comply with the procedural and evidentiary requirements set by the Migration Regulations, departmental guidelines or the RCB itself.

For listed Regional Certifying Bodies

• Confirm the assigned regional boundaries. Although s 4(2) assigns regional responsibility, the RCB should consult the instrument under the Regulations that lists designated regional areas to confirm its formal boundary and any overlaps or excluded areas.

• Establish internal processes. Because LIN 19/214 does not set procedural duties, each listed body should implement clear, documented procedures for receiving, assessing and issuing certifications tied to paragraph 2.72C(19)(a). These procedures should include records of assessments, lodgement dates, identity and eligibility checks, and communication protocols with the Department.

• Communicate publicly. RCBs should publish contact points and guidance for nominators and applicants to reduce confusion and misdirected applications, given the multiplicity and variety of listed organisations (s 4(3), Tables 1-8).

• Coordinate with departmental guidance. Liaise with the Department administering the Subclass 494 stream to align on formats, timing, and evidentiary expectations. LIN 19/214 assigns status but does not relieve the Department or RCBs from coordinating on process.

For Departmental administrators

• Use the instrument as the authoritative list. When a nomination or visa application engages paragraph 2.72C(19)(a) and falls within the temporal scope in s 5, verify whether the certification is from a body named in s 4(3) and that the certifying body’s regional mapping applies.

• Validate lodgement dates. Since the instrument’s applicability turns on precise dates, the Department must verify the lodgement timestamps for nomination approvals and visa applications in accordance with s 5.

• Provide clear public guidance. Because LIN 19/214 does not provide procedural detail, the Department should supply accessible guidance to applicants, nominators and RCBs explaining how to obtain and lodge certifications and the evidentiary standards expected under paragraph 2.72C(19)(a).

General compliance steps

• Cross-reference the regional-area instrument and the Migration Amendment (New Skilled Regional Visas) Regulations 2019 Schedule 2 for exact commencement and regional boundary mapping (s 2 and s 4(2)). LIN 19/214’s operative application is contingent on those instruments.

• Document and keep contemporaneous records that demonstrate which RCB was engaged, the dates of lodgement and the particular regional area mapping applied to mitigate later disputes about the instrument’s temporal or geographic scope.

• When in doubt, obtain confirmation from the Department or the listed RCB before finalising nominations or visa filings to avoid misfiling that could render an application outside the intended regulatory environment established by LIN 19/214.

Compliance with LIN 19/214 is therefore primarily about correct identification of the appropriate certifying body, precise attention to lodgement dates (s 5), and aligning procedural steps with the Migration Regulations and departmental practice.