EXPLANATORY Statement
Select Legislative Instrument 2011 No. 199
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2011 (No. 6)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to strengthen and improve immigration policy. The Regulations contain amendments to implement some recommendations made in the Hon Michael Knight AO’s report, Strategic Review of the Student Visa Program 2011 (dated 30 June 2011).
An overview of the Regulations is set out in Attachment B.
Details of the Regulations are set out in Attachment C.
The Regulations commence on 5 November 2011.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to amendments made by all Schedules to the Regulations.
In relation to the amendments made by Schedules 1, 3 and 4, the OBPR advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition. The OBPR consultation references are:
- 12272 (Schedule 1);
- 13220 (Schedule 3); and
- 12485 (Schedule 4).
In relation to the amendments made by Schedule 1 to the Regulations, the Department of Defence and the Australian Agency for International Development have also been consulted in relation to the Defence Scholarship and the Australian Scholarship programs respectively. They support the amendments and consider that the amendments will have no adverse impacts on their programs.
In relation to the amendments made by Schedule 2 to the Regulations, the OBPR assessed a Regulation Impact Statement (the RIS) prepared by the Department as being adequate. A copy of the RIS is at Attachment D. Further, the amendments made by Schedule 2 implement some recommendations made in the Hon Michael Knight AO’s report, Strategic Review of the Student Visa Program 2011 (dated 30 June 2011). This report was the consequence of wide consultations.
In relation to the amendments made by Schedules 3 and 4 to the Regulations, no further consultations were required as the amendments do not impact significantly on other government departments, non-government organisations, businesses or other interested parties.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which…
Overview
The Migration Amendment Regulations 2011 (No. 6) were enacted to amend the Migration Regulations 1994, which are subsidiary legislation made under the Migration Act 1958. These Regulations were introduced to address issues and gaps identified in the student visa program, as highlighted in the Strategic Review of the Student Visa Program 2011 by Hon Michael Knight AO. The primary objective of these amendments is to strengthen and improve immigration policy by ensuring that student visa applicants genuinely intend to stay in Australia temporarily. The Regulations were issued by the Minister for Immigration and Citizenship and commenced on 5 November 2011. They were developed after consultations with various stakeholders, including the Office of Best Practice Regulation, the Department of Defence, and the Australian Agency for International Development, among others. The Regulations implement some recommendations from Hon Michael Knight AO’s report and aim to ensure that student visa applicants are assessed for their genuine intent to stay temporarily in Australia, in addition to meeting other specified criteria.
Scope and Application
The Migration Amendment Regulations 2011 (No. 6) amends the Migration Regulations 1994, which are subordinate legislation made under the Migration Act 1958. The Regulations apply to all persons seeking to enter Australia on a visa, and to certain other persons who are in Australia on a visa and who are subject to the Regulations. The Regulations apply across Australia, in both Commonwealth and State/Territory jurisdictions. The Regulations are applicable to all temporary visa applicants, including visitors, students, and workers. The Regulations include a number of exclusions, exemptions, and thresholds, including certain types of visas that are not subject to the new provisions, and certain persons who are exempt from the new provisions, such as diplomatic personnel and certain humanitarian visa holders. The Regulations are intended to strengthen and improve immigration policy by, among other things, implementing some recommendations made in the Hon Michael Knight AO’s report, Strategic Review of the Student Visa Program 2011. The Regulations may be extended or restricted through subordinate instruments, such as instruments made under the Migration Act 1958.
Key Provisions
- The Migration Amendment Regulations 2011 (No. 6) amend the Migration Regulations 1994 to implement some of the recommendations made in the Hon Michael Knight AO’s report, Strategic Review of the Student Visa Program 2011. The Regulations strengthen and improve immigration policy by, among other things, inserting a public interest criterion that requires an applicant for a visa to satisfy the criterion. The Regulations also introduce a genuine temporary entrant criterion that must be satisfied by all primary applicants for Student visas except for “permission to work” applicants and all secondary applicants for Student visas except secondary applicants for permission to work and secondary applicants for Subclass 580 (Student Guardian) visas. Further, the Regulations amend English language requirements for Assessment Level (AL) 4 and AL 5 Subclass 570 (Independent ELICOS Sector) visas so that they are consistent with AL1 to AL3 English language requirements. The Regulations also reduce evidence of funds from an acceptable source for AL 4 applicants from 36 to 24 months and their savings history from six to three months; and reduce evidence of funds from an acceptable source for AL3 applicants from 24 to 18 months. The Regulations provide that the costs of certain health care and community services must be assessed by a Medical Officer of the Commonwealth in determining whether or not a visa applicant meets the relevant health requirement. The Regulations also provide that if an invitation to give additional information or comment on relevant information is given to an applicant in Australia by telephone, then the timeframe for providing the response is 7 days after the telephone conversation.
- The Regulations impose obligations and requirements on applicants for student visas and other certain visas. The Regulations require applicants for a visa to satisfy a public interest criterion 4020. The Regulations also require applicants for student visas, or a Subclass 580 (Student Guardian) visa, to satisfy clause 4020. The Regulations require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; the applicant’s immigration history; if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter. The Regulations also require the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter.
- Any breach of the Regulations may result in a civil penalty or a criminal penalty or both. The maximum penalty for a civil penalty offence is 120 penalty units (approximately $22,000). The maximum penalty for a criminal offence is 100 penalty units (approximately $18,000) or imprisonment for 12 months, or both.
- Area of Law
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