Migration Amendment Regulations 2007 (No. 13) (Cth)

Migration Amendment Regulations 2007 (No. 13)¹

Select Legislative Instrument 2007 No. 315

I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 26 September 2007

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

KEVIN ANDREWS

Minister for Immigration and Citizenship

Contents

1Name of Regulations                                            2

2Commencement                                                 2

3Amendment of Migration Regulations 1994                  2

4Amendment of Migration Regulations 1994                  3

5Amendment of Migration Regulations 1994                  3

6Amendment of the Migration Regulations 1994             3

7Amendment of the Migration Regulations 1994             3

Schedule 1Amendments relating to family violence 4

Schedule 2Amendment relating to waiver of criteria in clauses 866.222A and 866.222B 10

Schedule 3Amendment relating to subclass 834 visas 11

Schedule 4Amendment relating to subclass 771 visas 12

Schedule 5Amendment relating to personal identifiers 13

Name of Regulations

These Regulations are the Migration Amendment Regulations 2007 (No. 13).

Commencement

These Regulations commence on 15 October 2007.

Amendment of Migration Regulations 1994

(1)Schedule 1 amends the Migration Regulations 1994.

(2)The amendments made by Schedule 1 apply in relation to an application for a visa made on or after 15 October 2007.

Amendment of Migration Regulations 1994

(1)Schedule 2 amends the Migration Regulations 1994.

(2)The amendment made by Schedule 2 applies in relation to:

(a)an application for a Protection (Class XA) visa made on or after 15 October 2007; and

(b)an application for a Protection (Class XA) visa made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 15 October 2007.

Amendment of Migration Regulations 1994

(1)Schedule 3 amends the Migration Regulations 1994.

(2)The amendment made by Schedule 3 applies to an application for a visa made on or after 15 October 2007.

Amendment of the Migration Regulations 1994

(1)Schedule 4 amends the Migration Regulations 1994.

(2)The amendment made by Schedule 4 applies to an application for a visa made on or after 15 October 2007.

Amendment of the Migration Regulations 1994

(1)Schedule 5 amends the Migration Regulations 1994.

(2)The amendment made by Schedule 5 applies in relation to a person who, on or after 15 October 2007, is in detention under one of the following Acts:

(a)the Environment Protection and Biodiversity Conservation Act 1999;

(b)the Fisheries Management Act 1991;

(c)the Torres Strait Fisheries Act 1984.

Schedule 1 Amendments relating to family violence

(regulation 3)

[1] Division 1.5, heading

substitute

Division 1.5 Special provisions relating to family violence

[2] Subregulation 1.21 (1), definition of competent person, subparagraph (a) (v)

omit

court counsellor

insert

family consultant

[3] Subregulation 1.21 (1), definition of non‑judicially determined claim of domestic violence

substitute

non‑judicially determined claim of family violence has the meaning given by subregulation 1.23 (1A).

[4] Subregulation 1.21 (1), definition of relevant domestic violence

substitute

relevant family violence has the meaning given by paragraph 1.23 (2) (b).

[5] Regulation 1.22, heading

substitute

1.22References to person having suffered or committed family violence

[6] Regulation 1.23, heading

substitute

1.23When is a person taken to have suffered or committed family violence?

[7] Paragraph 1.23 (2) (b)

substitute

(b)a reference to relevant family violence is a reference to conduct, whether actual or threatened, towards:

(i)the alleged victim; or

(ii)a member of the family unit of the alleged victim; or

(iii)a member of the family unit of the alleged perpetrator; or

(iv)the property of the alleged victim; or

(v)the property of a member of the family unit of the alleged victim; or

(vi)the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

[8] Subparagraph 1.24 (1) (a) (ii)

substitute

(ii)a copy of a record of an assault, allegedly committed by the alleged perpetrator, on:

(A)the alleged victim; or

(B)a member of the family unit of the alleged victim; or

(C)a member of the family unit of the alleged perpetrator;

that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or

[9] Subregulation 1.25 (2)

substitute

(2)A statutory declaration under this regulation that is made by a person mentioned in subregulation 1.25 (1) who alleges that he or she is the victim of relevant family violence (within the meaning of paragraph 1.23 (2) (b)) must:

(a)set out the allegation; and

(b)name the person alleged to have committed the relevant family violence; and

(c)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

(i)name the person whom the conduct of the alleged perpetrator was towards; and

(ii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.

[10] Subregulation 1.25 (3)

after

made by a person

insert

mentioned in subregulation 1.25 (1)

[11] Paragraph 1.25 (3) (e)

substitute

(e)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

(i)name the person whom the conduct of the alleged perpetrator was towards; and

(ii)identify the relationship between the alleged victim and the person whom the conduct was towards; and

(iii)identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards; and

(f)set out the evidence on which the allegation is based.

[12] Paragraph 1.26 (f)

substitute

(f)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:

(i)must name the person whom the conduct of the alleged perpetrator was towards; and

(ii)must identify the relationship between the alleged victim and the person whom the conduct was towards; and

(g)must set out the evidence on which the competent person’s opinion is based.

[13] Further amendments — ‘family violence’

The following provisions are amended by omitting each mention of ‘domestic violence’ and inserting ‘family violence’:

·subparagraph 1.20J (1) (c) (ii)

·subregulation 1.21 (1), definition of competent person, paragraph (a)

·subregulation 1.21 (1), definition of competent person, paragraph (b)

·subregulation 1.21 (1), definition of independent expert, paragraph (a)

·subregulation 1.21 (1), definition of independent expert, paragraph (b)

·subparagraph 1.21 (2) (a) (ii)

·sub‑subparagraph 1.21 (2) (b) (i) (B)

·subparagraph 1.21 (2) (b) (ii)

·subregulation 1.22 (1)

·subregulation 1.22 (2)

·paragraph 1.23 (1) (a)

·paragraph 1.23 (1) (b)

·paragraph 1.23 (1) (f)

·paragraph 1.23 (1) (g)

·subregulation 1.23 (1A)

·paragraph 1.23 (1A) (a)

·sub‑subparagraph 1.23 (1A) (b) (ii) (A)

·sub‑subparagraph 1.23 (1A) (b) (ii) (B)

·subregulation 1.23 (1B)

·paragraph 1.23 (1B) (a)

·paragraph 1.23 (1B) (b)

·subregulation 1.23 (1C)

·subregulation 1.25 (3)

·paragraph 1.25 (3) (d)

·paragraph 1.26 (c)

·paragraph 1.26 (d)

·paragraph 1.26 (e)

·paragraph 1.27 (a)

·Schedule 2, subparagraph 100.221 (4) (c) (i)

·Schedule 2, subclause 100.221 (4), note

·Schedule 2, paragraph 110.221 (4) (c)

·Schedule 2, subclause 110.221 (4), note

·Schedule 2, sub‑subparagraph 445.223 (3) (a) (ii) (A)

·Schedule 2, subclause 445.223 (4), note

·Schedule 2, subparagraph 801.221 (6) (c) (i)

·Schedule 2, subclause 801.221 (6), note

·Schedule 2, paragraph 814.221 (8) (c)

·Schedule 2, subclause 814.221 (8), note

·Schedule 2, paragraph 820.211 (8) (d)

·Schedule 2, paragraph 820.211 (9) (e)

·Schedule 2, subclause 820.211 (9), note

·Schedule 2, subparagraph 820.221 (3) (b) (i)

·Schedule 2, subclause 820.221 (3), note

·Schedule 2, paragraph 826.221 (4) (b)

·Schedule 2, subclause 826.221 (4), note

·Schedule 2, paragraph 845.321 (3) (c)

·Schedule 2, subclause 845.321 (4), note

·Schedule 2, paragraph 846.321 (3) (c)

·Schedule 2, subclause 846.321 (4), note

·Schedule 2, subparagraph 851.321 (6) (d) (i)

·Schedule 2, subclause 851.321 (6), note

·Schedule 2, paragraph 855.321 (3) (c)

·Schedule 2, subclause 855.321 (4), note

·Schedule 2, paragraph 856.321 (3) (c)

·Schedule 2, subclause 856.321 (4), note

·Schedule 2, paragraph 857.321 (3) (c)

·Schedule 2, subclause 857.321 (4), note

·Schedule 2, paragraph 858.321 (3) (c)

·Schedule 2, subclause 858.321 (4), note.

Schedule 2 Amendment relating to waiver of criteria in clauses 866.222A and 866.222B

(regulation 4)

[1] Clauses 866.222A and 866.222B

substitute

866.222A(1) In the case of an applicant referred to in paragraph 866.211 (a), the applicant has not, in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

(2) The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

866.222B(1) In the case of an applicant referred to in paragraph 866.211 (b), neither the applicant nor the claimant referred to in the paragraph, has, in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

(2) The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

Schedule 3 Amendment relating to subclass 834 visas

(regulation 5)

[1] Schedule 2, clause 834.711

substitute

834.711No evidence need be given.

834.712If evidence is given, to be given by a port and date stamp placed in the passport of the holder.

Schedule 4 Amendment relating to subclass 771 visas

(regulation 6)

[1] Schedule 2, clause 771.222

after

4002,

insert

4003,

Schedule 5 Amendment relating to personal identifiers

(regulation 7)

[1] Regulation 3.30, including the note

substitute

3.30Immigration detainees must provide personal identifiers

(1)For subsection 261AA (1) of the Act, a circumstance is that the non‑citizen is in the company of, and restrained by:

(a)an officer; or

(b)in the case of a particular non‑citizen — another person directed by the Secretary to accompany and restrain the non‑citizen.

(2)For subsection 261AA (1) of the Act, a circumstance is that each of the following applies:

(a)immediately before being detained in immigration detention, the non‑citizen was detained under:

(i)the Environment Protection and Biodiversity Conservation Act 1999;

(ii)the Fisheries Management Act 1991;

(iii)the Torres Strait Fisheries Act 1984;

(b)the non‑citizen has provided a personal identifier or personal identifiers in accordance with the relevant Act in subparagraph (a) (i), (ii) or (iii).

(3)Subregulation (2) applies to the provision of a personal identifier only if:

(a)an authorised officer is satisfied that the personal identifier that has been provided is usable for a particular purpose set out in subsection 5A (3) of the Act; and

(b)the authorised officer is satisfied about the integrity of the personal identifier; and

(c)the authorised officer is satisfied that no further personal identifiers need to be collected from the non‑citizen to satisfy the purpose.

(4)For paragraph 261AA (1A) (e) of the Act, an iris scan is prescribed.

Note Under subsection 261AA (1) of the Act, a non‑citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers. Personal identifiers are mentioned in subsection 261AA (1A) of the Act, and include any prescribed personal identifiers.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See