Migration (1993) Regulations (Amendment)

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Migration (1993) Regulations (Amendment) 1993 No. 329

 

 

EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 329

Issued by the Authority of the Minister for Immigration and Ethnic Affairs Subject - Migration Act 1958

Migration (1993) Regulations (Amendment)

 

Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. Without limiting the generality of section 181, sections 23 and 33 of the Act enable the Governor-General to make regulations providing for different classes of visas and entry permits.

 

The purpose of the Regulations is to rectify an unintended consequence of the 1993 restructuring of the Migration Regulations made in 1989.

 

Under the Migration Regulations made in 1989, the discretion to waive the need to be medically examined was distinct from a waiver of the need to meet the health requirement after an assessment had been. made. The discretion to waive the need to be medically examined was only intended to be available for non-travelling family members not included in a primary person's application and who were unlikely to individually apply for permanent entry to Australia in the future. An unintended consequence of the 1993 restructuring of the Migration Regulations was that the Migration (1993) Regulations extended the discretion to waive the need to undergo a medical examination to secondary persons, that is, family unit members who are included in a primary person's application.

 

In order to remedy this oversight, the Regulations amend all but two classes of migrant visas and entry permits. They also amend two classes of permanent resident (after entry) entry permits, all classes of permanent resident (refugee and humanitarian) visas and entry permits, and certain provisions with respect to the grant of visas and entry permits to secondary persons.

 

Details of the Regulations are set out in the Attachment.

 

ATTACHMENT

 

Regulation 1 - Amendment

 

This regulation provides for the Migration (1993) Regulations to be amended as set out in the Regulations.

 

Regulation 2 - Schedule 2, Chapter 1.1 (Migrant visas and entry permits)

This regulation omits the words ", unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria" from each of the following clauses:

 

 100.337(1)(b) - (Spouse) Visa and Entry Permit

 

 101.336(1)(b) - (Child) Visa and Entry Permit

 

 102.335(1)(b) - (Adoption) Visa and Entry Permit

 

 103.336(1)(b) - (Parent) Visa and Entry Permit

 

 104.335(1)(b) - (Preferential Family) Visa and Entry Permit

 

 105.336(1)(b) - (Concessional Family) Visa and Entry Permit

 

 120.335(1)(b) - (Labour Agreement) Visa and Entry Permit

 

 121.336(1)(b) - (Employer Nomination) Visa and Entry Permit

 

 124.334(1)(b) - (Distinguished Talent (Australian Support)) Visa and Entry Permit

 

 125.334(1)(b) - (Distinguished Talent and Special Service (Independent)) Visa and Entry Permit

 

 126.336(1)(b) - (Independent Entrant) Visa and Entry Permit

 

 127.335(1)(b) - (Business Skills) Visa and Entry Permit

 

 128.335(1)(b) - (Business Skills (Senior Executive)) Visa and Entry Permit

 

 129.335(1)(b) - (State/Territory Sponsored Business Skills) Visa and Entry Permit

 

 130.335(1)(b) - (State/Territory Sponsored Business Skills (Senior Executive)) Visa and Entry Permit

 

 150.333(1)(b) - (Former Citizen) Visa and Entry Permit

 

 151.334(1)(b) - (Former Resident) Visa and Entry Permit

 

 152.335(1)(b) - (Family Reunion (New Zealand Citizen)) Visa and Entry Permit

 

Regulation 3 - Schedule 2, Chapter 1.2 (Permanent resident (after entry) entry permits)

 

This Regulation amends the affected clauses in this chapter. Currently the affected clauses make no distinction between family unit members who are applicants and

those who are not. All other clauses in this chapter make that distinction. The amendments bring the affected clauses into line with those other clauses in this chapter, reflecting the distinction between secondary and non-secondary persons. The amendments also ensure that secondary persons are required to satisfy public interest criteria 4001 to 4006 and in the case of class 800, to satisfy public interest criterion 4009.

 

Subregulation 3.1 amends clause 800.733 - (Territorial Asylum) Entry Permit.

 

Subregulation 3.2 amends clause 802.736 - (Child (After Entry)) Entry Permit.

 

Regulation 4 - Schedule 2, Chapter 1.3 (Permanent resident (refugee and humanitarian) visas and entry permits)

 

This regulation omits the words unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria" from each of the following clauses:

 

 200.339(1)(b) - (Refugee) Visa and Entry Permit

 

 201.339(1)(b) - (In-Country Special Humanitarian Program) Visa and Entry Permit

 

 202.339(1)(b) - (Global Special Humanitarian Program) Visa and Entry Permit

 

 203.339(1)(b) - (Emergency Rescue) Visa and Entry Permit

 

 204.339(1)(b) - (Woman at Risk) Visa and Entry Permit

 

 205.336(1)(b) - (Camp Clearance) Visa and Entry Permit

 

 208.337(1)(b) - (East Timorese in Portugal (Special Assistance)) Visa and Entry Permit

 

 209.338(1)(b) - (Citizens of Former Socialist Federal Republic of Yugoslavia - Displaced Persons (Special Assistance)) Visa and Entry Permit

 

 210.338(1)(b) - (Minorities of Former USSR (Special Assistance)) Visa and Entry Permit

 

 211.335(1)(b) - (Burmese (Special Assistance)) Visa and Entry Permit

 

 212.337(1)(b) - (Sudanese (Special Assistance)) Visa and Entry Permit

 

 213.335(1)(b) - (Displaced Burmese in Thailand (Special Assistance)) Visa and Entry Permit

 

Regulation 5 - Schedule 3 (Provisions with respect to the grant of visas and entry permits included in certain groups to secondary persons)

This regulation omits the words ", unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria" from each of the following clauses:

 

 011.334(b)(i) - Migrant Visas and Entry Permits (Secondary Persons)

 

 011.334(b)(ii) - Migrant Visas and Entry Permits (Secondary Persons)

 

 013.333(b) - Permanent Resident (Refugee and Humanitarian) Visas and Entry Permits (Secondary Persons)

Overview

The Migration (1993) Regulations (Amendment) 1993 No. 329 was enacted to address an oversight in the Migration Regulations of 1989, which unintentionally expanded the discretion to waive the need for a medical examination to secondary persons, such as family unit members included in a primary person's application. The Migration Act 1958 grants the Governor-General the authority to make regulations, and Section 181 of the Act provides the basis for these amendments. The policy objective is to rectify this unintended consequence by ensuring that the waiver of medical examination requirements applies only to non-travelling family members who are unlikely to individually apply for permanent entry to Australia in the future. The Regulations were issued under the authority of the Minister for Immigration and Ethnic Affairs and amend various classes of migrant visas and entry permits, as well as specific provisions concerning secondary persons. These amendments are intended to ensure consistency in the application of public interest criteria and the proper distinction between secondary and non-secondary persons in the context of medical examination waivers.

Scope and Application

The Migration (1993) Regulations (Amendment) 1993 No. 329 amends the Migration (1993) Regulations to address an unintended consequence that arose from the 1993 restructuring of the Migration Regulations. The amendment applies to all but two classes of migrant visas and entry permits, two classes of permanent resident (after entry) entry permits, all classes of permanent resident (refugee and humanitarian) visas and entry permits, and certain provisions concerning the grant of visas and entry permits to secondary persons. These secondary persons are family unit members who are included in a primary person's application. The amendments aim to rectify the oversight that extended the discretion to waive the need for a medical examination to secondary persons, aligning the regulations with the original intent that such waivers were only applicable to non-travelling family members not included in a primary person's application and unlikely to apply for permanent entry individually. The Regulations do not create any exclusions, exemptions, or thresholds, but they do refine the application of the Migration Regulations to ensure consistency in the application of health requirements across different visa classes and entry permits.

Key Provisions

The Migration (1993) Regulations (Amendment) 1993 No. 329 amends the Migration (1993) Regulations to rectify an oversight that resulted from the 1993 restructuring of the Migration Regulations. The amendments specifically address the unintended extension of the discretion to waive the need for a medical examination to secondary persons, who are family unit members included in a primary person's application. Regulation 1 provides for the amendment of the Migration (1993) Regulations as outlined in the Regulations. The amendments outlined in Regulations 2, 3, 4, and 5 clarify the categories of migrant visas and entry permits that require a medical examination. This includes changes to migrant visas and entry permits (Regulation 2), permanent resident (after entry) entry permits (Regulation 3), permanent resident (refugee and humanitarian) visas and entry permits (Regulation 4), and provisions concerning the grant of visas and entry permits to secondary persons (Regulation 5). Each of these regulations makes specific changes to the relevant clauses to ensure that the distinction between secondary and non-secondary persons is maintained and that secondary persons must satisfy the appropriate public interest criteria. The Regulations impose specific obligations on applicants for various visas and entry permits. For migrant visas and entry permits, permanent resident (after entry) entry permits, permanent resident (refugee and humanitarian) visas and entry permits, and provisions concerning secondary persons, applicants must now satisfy the health requirement unless the Minister determines that it would be unreasonable to require them to undergo a medical examination. This ensures that the health requirements are appropriately enforced across all categories of applicants, aligning the regulations with the original intent of the 1993 restructuring. Breach of the health requirement stipulated in the amended Regulations can result in civil and criminal consequences. Under the Migration Act 1958, non-compliance with visa conditions, including the health requirement, can lead to the cancellation of a visa, deportation, and potential criminal charges. The maximum penalties for such offences include fines and imprisonment, as stipulated in the Act. For example, section 126 of the Migration Act 1958 provides for penalties of up to 10 years imprisonment for offences related to false statements or documents. Furthermore, under section 233, any person who contravenes a visa condition can be liable for a civil penalty of up to $22,200. These consequences underscore the importance of adhering to the health requirements set forth in the amended Regulations.

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