The demand for Australian visas continues to be high, at a time when domestic concerns about the number of arrivals in Australia are as high on the political agenda as the writer can recall during his 25 years in Australia.

More specifically, the Net Overseas Migration number is an issue that is very high on the political agenda presently.

In this context Australia’s Immigration Minister Tony Burke has published 3 x Ministerial Directions.

Ministerial Directions are issued within the framework of migration legislation, and have the effect of requiring decision makers at the Department of Home Affairs to follow the priorities set out in those Directions.

In doing this decision makers must have regard to the Government’s policy intentions concerning the size and composition of the Migration Program, and to Australia’s international legal obligations.

The Ministerial Direction that is the subject of this blog is MD117, which discusses the order of processing of family visa applications.

MD117 runs alongside MD103, which was issued in February 2023.

More specifically, the preamble to MD117 advises:

(1) High levels of demand for Family visas have created a need to manage the consideration and disposal of applications for these visas in an orderly fashion.

(2) The order of priorities for considering and disposing of Family visa applications that is specified in this Direction gives effect to the Government’s policy decisions as to the appropriate allocation of resources in considering and disposing of such applications, takes into account the Government’s policy intentions concerning the size and composition of the Migration Program as a whole, and advances the national interest by facilitating the integrity of the program and management of Australia’s borders.

Further, in respect of MD103 and MD117:

For the purpose of processing Family visa applications, the two Directions are intended to work together, with this Direction setting out the overall priorities for Family visa processing, and Direction 103 (or its succeeding Directions) providing more specific directions in relation to the finalisation of applications that are affected by the annual capping arrangements under section 85.

To the extent that there is any conflict between the Directions, Direction 103 – Order for considering and disposing of visa applications under s91 of the Migration Act (or its succeeding Directions) will take precedence over this Direction.

So what does MD117 require of decision makers at Home Affairs?

The order of priority for considering and disposing of Family visa applications, with applications covered by paragraph (2)(a) having higher priority than applications covered by paragraph (2)(b).

The order of priority is as follows:

(a)  Family visa applications where:

(i)  the applicant is a primary applicant who is in Australia at the time of application; and

(ii)  the visa can be granted when the applicant is in Australia;

are to be considered and disposed of in accordance with the Visa Processing Order; and

(b)  Family visa applications where the applicant is a primary applicant who either is outside Australia at the time of application or must be outside Australia at the time of grant are to be considered and disposed of in accordance with the Visa Processing Order.

And (with some editing):

In this section, Visa Processing Order means the following order of priority for considering and disposing of Family visa applications, with paragraph (a) being the highest priority and paragraph (f) being the lowest priority:

(a)  applications made by an applicant in respect of whom the Minister has substituted a decision of the ART or a predecessor of the ART, in the order that those powers have been exercised; and

(b)  applications made on the basis of the primary applicant being the spouse, de facto partner, prospective spouse or dependent child of a sponsor (or proposed sponsor); and

(c)  applications made on the basis of the primary applicant being the orphan relative of the sponsor (or proposed sponsor); and

(d)  applications for Contributory Parent, Contributory Aged Parent, Contributory Parent (Temporary), and Contributory Aged Parent (Temporary) visas; and

(e)  applications made on the basis of the primary applicant being a carer; and

(f)  applications for Parent and Aged Parent visas; and applications made on the basis of the primary applicant being a remaining relative or an aged dependent relative.

Visa applications made by an applicant seeking to satisfy the secondary criteria for the grant of a Family visa (whether or not the application is combined with a primary applicant’s application in a way permitted by the Regulations) are given the same priority as the primary applicant’s application.

In summary, with immediate effect MD117 requires decision makers at Home Affairs to process onshore visa applications before offshore visa applications, and to process partner visa applications before parent visa applications.

MD103 – which readers will recall has precedence over MD117 – contains this definition:

Family Visas means classes of visa provided for by the Regulations, including repealed classes that cater for primary applicants in any of the following categories: spouses, de facto partners, prospective spouses, dependent children, parents, aged parents, aged dependent relatives, carers, orphan relatives, and remaining relatives.

And:

Except as otherwise instructed by this Direction and MD117, delegates should process applications for Family visas in the order in which they are received by the Department.

Except for Other Family visa applications and Pathway visa applications the order of precedence for Family visa applications is:

(a) those applications where the Minister has exercised powers of intervention in the order that those powers have been exercised; then

(b) all other applications in queue date order, commencing with the application with the earliest queue date, to the extent that it is reasonably practicable to assess applications in that order.

So what does all of this mean?

We await confirmation from Home Affairs, but our present interpretation is that – so long as the Minister allocates a number of parent visas annually by way of a formal cap on numbers – decision makers at Home Affairs are required to process parent visa applications on the basis of their queue dates.

Within this new MD117 requires that parent visa applications are then to be processed as to onshore Contributory Aged Parent visa applications first – ie subclasses 864 and 884 – before any offshore Contributory Parent visa applications under subclasses 143 and 173.

It remains to be seen whether this will in fact play out as anticipated here, but the political narrative in play in Australia would seem to indicate that subclass 143 and 173 visa applicants are destined to wait many years longer than was the case before MD117 was introduced.