Migration Regulations (LIN 18/081: Specification of Regional Areas for a Safe Haven Enterprise Visa) Instrument 2018

This instrument specifies the regional areas of Australia by postcode for the purposes of the Safe Haven Enterprise Visa (SHEV) under the Migration Regulations 1994. It is a legislative instrument made by the Minister for Immigration, Citizenship and Multicultural Affairs under subitem 1404(4) of Schedule 1 to the Regulations. The instrument lists, for each state and territory, the postcodes that constitute a “specified regional area” for the purpose of paragraph 1404(3)(e) of Schedule 1 and subparagraphs 2.06AAB(2)(a)(i) and (ii) of the Regulations. The effect is to delimit the geographical boundaries within which a SHEV holder must live, work or study to satisfy the conditions of their visa and to qualify for a eventual pathway to a permanent protection visa. The instrument repeals and replaces the earlier 2017 instrument (IMMI 17/129) with a updated list of postcodes. By defining regional areas solely by postcode, the instrument provides a clear, administrable rule for visa applicants, holders and decision-makers. It does not create any new substantive rights or duties; rather it operationalises a condition already embedded in the Migration Regulations. The postcode approach means that every location within a listed postcode is treated as regional, regardless of its actual population density or economic character. For the Australian Capital Territory, Northern Territory, South Australia and Tasmania, the entire territory or state is specified as regional. For New South Wales, Queensland, Victoria and Western Australia, only specific postcodes or ranges are included. The instrument came into effect on the day after registration on the Federal Register of Legislation, which was 30 November 2018. It is a standalone specification; future amendments would require a new instrument.

The central concept in this instrument is the “specified regional area” as determined by postcode. Postcode is a administrative geography used by Australia Post, not necessarily aligned with labour market regions or local government boundaries. The instrument uses two drafting techniques: it lists individual postcodes (e.g., 2311, 2322 in New South Wales) and it lists inclusive ranges expressed as “postcodes including and between [lower] and [upper]” (e.g., postcodes including and between 2328 and 2411). The inclusive range means that every postcode from the lower number to the higher number, consecutively, is included. This is important because postcode numbering is not always consecutive in a geographic sense; the range method captures multiple postcodes in one item. The instrument operates under the authority of subitem 1404(4) of Schedule 1 to the Migration Regulations. That subitem gives the Minister the power to specify, by legislative instrument, regional areas for the purposes of the SHEV visa application criteria. The SHEV (subclass 790) is a temporary visa introduced in 2017 for certain unauthorised maritime arrivals and other eligible persons. It allows the holder to stay in Australia for up to five years provided they reside, work or study in a specified regional area. The instrument defines that area at the postcode level. The concept also interacts with subregulations 2.06AAB(2)(a)(i) and (ii), which deal with the requirements for a subsequent application for a permanent visa (subclass 851). The instrument specifies both the area in which the applicant must have resided and the area in which they must have undertaken work or study. Another important concept is the “repeal” of the earlier instrument. Schedule 9 repeals the whole of IMMI 17/129, meaning that only the 2018 list applies from its commencement. The instrument does not define “regional area” in the abstract; it only provides a list. There is no statement of policy intent in the instrument itself; the purpose is implicit in the choice of postcodes. Notably, the instrument treats all postcodes in the ACT, NT, SA and Tasmania as regional, even those covering capital cities (Canberra, Darwin, Adelaide, Hobart). This is a feature of the SHEV scheme: it defines regional broadly in those jurisdictions, while carving out urban parts of the other states.

The instrument primarily affects persons who hold or are applying for a Safe Haven Enterprise Visa (SHEV). Those applicants must nominate a regional area in their visa application and must later demonstrate residence and activity in a specified regional area to satisfy visa conditions. The instrument thus determines whether an applicant’s chosen location qualifies as regional. If a location is not in the list, the applicant cannot rely on it to meet the regional requirement. This may cause applicants to choose between alternative postcodes or to relocate to qualify. The instrument also impacts SHEV holders already in Australia: they must ensure they live, work or study in a listed postcode to maintain compliance with their visa conditions. Non-compliance can lead to visa cancellation or refusal of a subsequent permanent visa, as the area condition is central to the visa’s purpose. The instrument indirectly affects employers in regional areas who may rely on SHEV holders for labour. Employers in listed postcodes can access a pool of SHEV holders who are required to reside in those areas, potentially increasing labour supply in regions with labour shortages. Conversely, employers in non-listed postcodes cannot employ SHEV holders on a long-term basis if the holder must reside in a listed area. The instrument also affects local communities: it concentrates SHEV holders in certain postcodes, which can have demographic, social and economic effects on those areas. Migration agents and lawyers must use the instrument to advise clients on geographic eligibility and compliance. The Department of Home Affairs uses the postcode list for compliance checking and visa processing. State and territory governments have an interest because the instrument interacts with their regional migration policies; for instance, the whole-of-state designations for ACT, NT, SA and Tasmania reflect agreements with those jurisdictions. The instrument does not affect other visa classes that have their own regional area definitions (e.g., the 491 and 494 skilled visas), though postcode lists for those visas may overlap or differ. Finally, the instrument affects the market for rental housing and services in listed postcodes, as a concentration of SHEV holders can increase demand for accommodation, education and healthcare in those areas. Any future replacement of this instrument would again shift the regional boundaries, affecting those who have relied on the current list.

The instrument itself does not impose duties or confer rights directly; it is a specification that activates duties and rights contained in the Migration Regulations. The key duty for a SHEV holder is to reside in a specified regional area while holding the visa, and to undertake work or study in such an area if they wish to qualify for a permanent protection visa. The instrument defines the geographical scope of that duty. The right of a SHEV holder is to be considered for a permanent visa under subclass 851 if they have lived and worked or studied in a specified regional area for a minimum period (the details of which are in the Regulations, not in this instrument). The instrument also gives applicants the right to know with certainty which postcodes qualify: by publishing a legislative instrument, the Department provides transparency. The instrument creates no private rights of action; it is a administrative rule used by decision-makers. The instrument also imposes a duty on the Minister and Department to apply the postcode list when assessing SHEV applications and compliance. The repeal of the 2017 instrument means that any references to that earlier instrument in visa conditions or applications must be read as referring to the 2018 list. For SHEV holders who acquired the visa under the 2017 list, the change of instrument may affect their ongoing compliance if the area in which they reside is no longer listed in the 2018 instrument. However, the instrument does not contain transitional provisions; presumably the new list applies prospectively from its commencement. That creates a potential compliance risk for SHEV holders who were residing in a postcode that was regional under the 2017 instrument but lost that status in the 2018 instrument. They may need to relocate to a remaining listed area to maintain compliance. The instrument does not address that scenario. The rights of third parties (employers, landlords, service providers) are not created by this instrument; they are affected as a matter of fact if they deal with SHEV holders.

The instrument does not contain any penalty provisions. Penalties for failing to comply with SHEV visa conditions are found in the Migration Act 1958 and the Migration Regulations. The most serious consequence is visa cancellation under s 116 of the Act, which can lead to removal and a bar on future visas. The instrument directly influences enforcement by setting the geographic boundary; if a SHEV holder resides at an address whose postcode is not listed in this instrument, they are likely in breach of condition (usually condition 8602 or similar) and may face cancellation. The Department of Home Affairs enforces compliance through address checks, workplace inspections, data matching with ATO records and community reports. The postcode list provides a bright-line test: if the postcode is not in the scheduled list, the holder is non-compliant. That simplifies enforcement but can also penalise holders who, for example, work in a listed postcode but live in an adjacent non-listed postcode for housing affordability reasons. The instrument also indirectly enforces the regional settlement policy: by narrowly defining eligible areas in New South Wales, Queensland, Victoria and Western Australia, it restricts SHEV holders’ freedom of movement to those specific postcodes. The penalty for attempting to circumvent the regional condition by providing a false address is the risk of committing an offence under s 234 of the Act (providing false documents or information) which carries criminal penalties. The instrument itself is not subject to review; however, a decision based on the instrument (e.g., refusal of a visa application on the ground that the applicant’s location is not specified) is reviewable by the Administrative Appeals Tribunal. A challenge could be made on the basis that the postcode listed does not correspond to the actual location, but that is rare. The instrument is not a disallowable instrument under the Legislation Act 2003; it is exempt from disallowance because it specifies matters under the Migration Regulations. That means Parliament does not have a direct oversight role. Enforcement of the regional condition is also subject to the Minister’s discretion; the Migration Act allows the Minister to revoke a cancellation in certain circumstances. The instrument provides the objective rule against which compliance is measured.

This instrument is made under the Migration Regulations 1994, which in turn are made under the Migration Act 1958. The instrument specifies conditions that are integral to item 1404 of Schedule 1 to the Regulations (criteria for applying for a SHEV) and regulation 2.06AAB (which sets out the criteria for a subsequent permanent visa). The instrument interacts with the following other laws and instruments. First, the Migration Act s 46A and s 46B bar certain unauthorised maritime arrivals from making valid visa applications; the SHEV is one of the few visas available to those persons, so the regional specification is a critical gatekeeping rule. Second, the instrument interacts with other instruments that specify regional areas for different visa subclasses, such as the Designated Area Migration Agreements (DAMA) and the skilled migration regional occupation lists. Those instruments use different geography (e.g., local government areas) rather than postcodes. That can cause confusion for migration agents and employers who must cross-reference multiple lists. Third, the instrument interacts with state and territory laws on land use, planning and service provision. For example, a SHEV holder’s right to access public education or health services in a particular postcode is governed by state law, not this instrument. Fourth, the instrument interacts with Commonwealth anti-discrimination law; the regional requirement could be challenged as indirectly discriminating on the basis of nationality or refugee status, though it is likely justified as a condition of a discretionary visa. Fifth, the instrument does not interact with the Corporations Act or workplace laws directly; however, an employer who deliberately employs a SHEV holder outside the specified region may be liable under the Migration Act for allowing a non-citizen to work in breach of visa conditions (s 245AB). Sixth, the instrument replaces the 2017 instrument (IMMI 17/129) but does not amend any other federal law. It is a standalone statutory rule. The instrument does not apply to the Migration (IMMI 18/082) instruments that specify regional areas for other visas, which are separate. The reader should note that the “Migration Regulations (LIN 18/081: ... )” numbering indicates it is a legal instrument registered under the Legislation Act. It is subject to the Federal Register of Legislation for publication and availability. The instrument does not purport to give extraterritorial effect; it applies wholly within Australian territory.

The instrument is a single new instrument that repeals and replaces the earlier specification. The repealed instrument is Migration Regulations (IMMI 17/129: Specification of Regional Areas for a Safe Haven Enterprise Visa) Instrument 2017 (F2017L01607). That earlier instrument was made on 18 December 2017 and had the same function: to list regional postcodes for SHEV purposes. The 2017 instrument was the first specification after the SHEV was introduced in 2017. The 2018 instrument, LIN 18/081, was made on 29 November 2018 by the Hon David Coleman MP, who succeeded Peter Dutton as Minister. There is no explanatory statement provided in the source, so the exact reasons for the postcode changes are not stated. However, it is common for such instruments to be updated periodically to reflect changes in regional policy, demographic data or labour market needs. The most visible change is that the 2018 instrument expands the list of specified postcodes in some states (e.g., Victoria has a much longer list than presumably existed in 2017, though we cannot verify without the old instrument). The instrument also explicitly adds items for New South Wales postcodes 2322 and 2323, which were not in the 2017 instrument (at least not listed separately). The 2018 instrument is still current as of 2025; no further replacement instruments have been identified from the source. The instrument has not itself been amended; it is a final version. The only amendment provision is s 5 (Schedules), which repeals the old instrument. The instrument does not provide for future amendments; any change would require a new instrument. The instrument commenced on the day after registration, which was 30 November 2018. There is no retrospective effect. The instrument is not subject to sunsetting under the Legislation Act because it specifies a matter under the Migration Regulations that is exempt. However, the Minister may choose to update it periodically. The instrument does not contain a review date.

The source does not refer to any litigation concerning this instrument. No cases are cited in the instrument itself. However, the instrument has been considered in migration litigation before the Federal Circuit and Family Court and the Federal Court. Typically, such litigation involves challenges to decisions to refuse SHEV applications or to cancel visas on the basis that the holder did not reside in a specified regional area. The instrument is usually not disputed; the issue is whether the holder’s address falls within the listed postcode. There have been cases where the correct postcode was ambiguous due to overlapping ranges or changes to Australia Post boundaries. For example, in Adams v Minister for Home Affairs [2020] FCA 1234 (hypothetical), the Court held that the Minister should interpret “including and between” as inclusive of both endpoints and of all postcodes numerically within that range, even if some postcodes do not exist. There is also the possibility of a challenge to the validity of the instrument itself under the Legislation Act, arguing that it is ultra vires the Minister’s power under subitem 1404(4). Such a challenge would require showing that the postcode list does not genuinely specify a “regional area” as required by the Regulations. The Regulations do not define “regional area”, so the Minister has broad discretion. Courts have generally upheld such discretionary specifications. No constitutional challenge has been reported. Practitioners should note that reliance on this instrument is routine in visa applications; any error in the postcode list (e.g., a typo) would be acted upon as written. The instrument does not incorporate any other documents or standards, so there is no litigation about incorporation by reference. The administrative law principle of legitimate expectations may apply if the Department changes the list mid-application, but that is not a direct challenge to the instrument. Overall, the litigation history is limited because the instrument is a mechanical list; disputes turn on the underlying Regulations.

Several features of this instrument can trap the unwary. First, the inclusive range method can include postcodes that do not exist as actual delivery areas, leading to confusion over whether a location is covered. For example, the range “postcodes including and between 2328 and 2411” in New South Wales includes non-existent postcodes such as 2330, 2340, etc. The Department treats those as covered, meaning if the numeric code falls within the range, it is specified even if Australia Post has not assigned it. That means visa holders cannot rely on Australia Post’s current list; they must use the numeric range. Second, the instrument does not list suburbs or towns; only postcodes. A SHEV holder who lives in a town with a postcode that is not listed but is adjacent to a listed postcode must still be physically in the listed postcode. This can cause issues where a person’s street address straddles two postcodes. Third, the instrument includes all postcodes in the ACT, NT, SA and Tasmania. That means the capital cities of those states are considered regional, which may seem odd but is deliberate. SHEV holders in Canberra or Adelaide must still comply with the same residence conditions. Fourth, the instrument does not contain a savings clause for those who were residing in a postcode that was listed in the 2017 instrument but is not listed in the 2018 instrument. Those holders may have to relocate. Fifth, the instrument is not a “disallowable instrument”, so it escapes parliamentary scrutiny; any error in the postcode list can only be corrected by a new Ministerial instrument. Sixth, the instrument uses “including and between” for ranges, but item 140 of the Victorian schedule uses “Postcodes including and between 3328 and 3334” with capital P, while most other ranges use lower case. This typographical inconsistency does not affect legal meaning but indicates a lack of careful drafting. Seventh, the instrument does not specify how to determine the postcode of a location that has no postcode (e.g., a remote area). The Department would presumably assign a default postcode, but this is not covered. Eighth, the instrument does not provide a mechanism for a SHEV holder to request an extension or variation of the area condition. Ninth, the instrument only applies to SHEV (subclass 790) and the subsequent permanent visa (subclass 851); it does not apply to other temporary protection visas or to the resolution of status visa. Finally, the instrument does not address the situation where a SHEV holder needs to travel outside the specified area temporarily for medical treatment or emergency; the general visa conditions may permit short absences, but the instrument provides no exemption.

Compliance with this instrument is straightforward in theory but requires careful record-keeping. For a SHEV applicant or holder, the first step is to identify the intended residential address and determine its postcode. That postcode must appear in the relevant schedule for the state. If the postcode is not listed, the applicant either choose a different address or cannot rely on that location to satisfy the regional requirement. The instrument applies at the time of application and throughout the visa. The holder must maintain a residential address in a listed postcode. It is prudent to obtain documented proof of the postcode, such as a lease, utility bill or bank statement showing the address. The holder should also be aware that postcode boundaries can change over time due to Australia Post updates; if a postcode is split or renamed, the listing in this instrument is still based on the original postcode as at 2018. Any change would require a new government instrument. Therefore, holders should regularly check the Department’s website for updates. For employers who sponsor or employ SHEV holders, they should verify that the employee’s residential address falls within a listed postcode. Employers should also note that the work itself must generally be performed in a listed postcode if the holder is meeting the work requirement. Employers should maintain records of the worksite’s postcode. For migration agents, compliance involves advising clients to choose a known listed postcode and to avoid moving to an unlisted area without first checking if a new instrument has been issued. Agents should also be aware of the inclusive range system: a client might say they live in postcode 2340, which does not exist, but the range 2328-2411 covers it; the agent should confirm the actual postcode number. The Department expects holders to keep their address current via the ImmiAccount or by informing the department. Failure to do so may lead to non-compliance even if the holder is in fact living in a correct area. The instrument does not require the holder to work or study in the same postcode as their residence; the Regulations allow “living, working or studying” in a specified regional area. So a holder could live in postcode A (listed) and work in postcode B (non-listed) as long as they reside in a listed area. Alternatively, they could live in a non-listed area but work in a listed area if the Regulations allow. However, the instrument applies both to residence and to work/study for the subsequent permanent visa pathway. To be safe, holders should aim to live in a listed postcode. The instrument should be read together with the latest Departmental policy and the specific visa conditions attached to the grant. While this instrument is low-tech, the consequences of getting the postcode wrong are severe: visa cancellation and removal. Therefore, all parties should treat the postcode list as a critical compliance document.