Migration (1993) Regulations (Amendment) 1993 No. 310
EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 310
Issued by the Authority of the Minister for Immigration and Ethnic Affairs Migration Act 1958
Migration (1993) Regulations (Amendment)
Section 181 of the Migration Act 195 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act. Without limiting the generality of section 181, section 23 of the Act enables regulations to be made providing for different classes of visas and section 33 of the Act enables regulations to be made providing for different classes of entry permits.
The purpose of the Regulations is to introduce a new Part 214 - Class 214 (Cambodians (special assistance)) visa and entry permit. This new class will provide for travel to, and permanent residence in, Australia of certain Cambodian residents who are experiencing hardship as a result of the upheavals in Cambodia in recent years (see clause 214.12).
At the time of application for the grant of a Class 214 visa it will be a criterion that an applicant is usually a resident of Cambodia, is experiencing hardship as a result of upheavals in Cambodia over recent years, and has close links with Australia (see clause 214.321). An applicant will establish close links with Australia if the applicant has a parent, daughter, son, sister, brother, aunt, uncle, niece or nephew who is usually resident in Australia and who was on 1 October 1993, and continues to be, an Australian citizen or an Australian permanent resident (see paragraph 214.322(a)).
Alternatively, an applicant who arrived in Australia by boat without authority between 28 November 1989 and 26 April 1991, and who, before that arrival, was usually a resident of Cambodia, will have close links with Australia if he or she was in detention under the Act for a greater part of his or her stay in Australia and subsequently returned to Cambodia (see paragraph 214.322(b)).
Applicants will be further required to have the support of a relative mentioned above, a community organisation, or another group in Australia that is accepted by the Minister as having close links with the applicant (see clauses 214.323 and 214.324).
Criteria to be satisfied at the time of decision will include the requirements that the Minister be satisfied that permanent settlement in Australia is the appropriate course for the applicant and would not be contrary to the interests of Australia (see clause 214.331), that the applicant has been resident in Cambodia for a period of 12 months immediately before the time of decision (see clause 214.332), and that the Minister be satisfied that there are compelling reasons for giving special consideration to granting
the applicant a visa (see clause 214.338). An applicant will also have to satisfy specified public interest and special re-entry criteria (see clauses 214.334 and 214.335).
The maximum number of Class 214 visas to be granted in a financial year is to be specified by Gazette Notice (see clause 214.333).
Details of the regulations are as follows: Regulation 1 - Amendment
Provides that the Migration (1993) Regulations are amended as set out in these Regulations.
Regulation 2 - Schedule 1 (Classification of visas and entry permits)
Inserts the new Class 214 (Cambodians (special assistance)) visa and entry permit, created by these Regulations, as item 1303B in Division 1.3 - Group 1.3 (Permanent resident (refugee and humanitarian)) of Schedule 1.
Regulation 3 - Division 1.3 (New Part 214)
Inserts the new Part 214 - Class 214 (Cambodians (special assistance)) visa and entry permit in Schedule 2.
The Regulations commence on gazettal.
Overview
The Migration (1993) Regulations (Amendment) 1993 No. 310, enacted under the authority of the Minister for Immigration and Ethnic Affairs, amends the Migration Regulations 1993 to introduce a new visa category aimed at addressing the specific needs of Cambodian residents facing hardship due to recent upheavals in their country. The problem these Regulations seek to address is the humanitarian crisis faced by Cambodians who have been adversely affected by the political and social turmoil in their homeland, and who have established or are seeking to establish close links with Australia. The policy objective of the Amendment is to provide a pathway for the resettlement of these individuals in Australia, ensuring that their permanent settlement aligns with Australia's interests and that they meet specified public interest and special re-entry criteria. The Regulations establish criteria for eligibility, including residency in Cambodia, experiencing hardship, and having close links with Australia, and set out conditions for the grant of a visa, such as the maximum number of visas to be granted each financial year.
Scope and Application
The Migration (1993) Regulations (Amendment) 1993 No. 310 amends the Migration (1993) Regulations to introduce a new Class 214 (Cambodians (special assistance)) visa and entry permit under the Migration Act 1958. This new visa category is intended to facilitate travel to, and permanent residence in, Australia for specific Cambodian residents who are experiencing significant hardship due to recent upheavals in Cambodia. The application process requires the applicant to demonstrate that they are usually a resident of Cambodia, have experienced hardship as a result of recent Cambodian upheavals, and have close links with Australia, which may be established through familial ties or previous detention in Australia. The criteria for the grant of this visa also include the applicant having the support of a relative in Australia, a community organisation, or another group accepted by the Minister as having close links with the applicant. The decision to grant a visa will depend on the Minister being satisfied that permanent settlement in Australia is appropriate and not contrary to Australia's interests, among other requirements. The number of Class 214 visas to be granted annually will be specified by a Gazette Notice. The Regulations apply nationally and will be in effect from the date of their gazettal.
Key Provisions
The Migration (1993) Regulations (Amendment) 1993 No. 310 introduces a new Class 214 (Cambodians (special assistance)) visa and entry permit under the Migration Act 1958 (the Act). Section 181 of the Act allows for regulations to be made for carrying out or giving effect to the Act, and this amendment introduces a new visa class specifically for Cambodian residents experiencing hardship due to recent upheavals in Cambodia (see clause 214.12). Regulation 1 indicates that these Regulations amend the existing Migration (1993) Regulations. Regulation 2 and Regulation 3 then detail the insertion of the new Class 214 visa and entry permit into Schedule 1 and Schedule 2 of the Regulations respectively.
The new Class 214 visa is subject to several criteria both at the time of application and the time of decision. At the application stage, an applicant must be usually a resident of Cambodia, experiencing hardship due to recent upheavals in Cambodia, and have close links with Australia (see clause 214.321). Close links with Australia can be established by having a parent, daughter, son, sister, brother, aunt, uncle, niece or nephew who is usually resident in Australia and was an Australian citizen or permanent resident on 1 October 1993 (see paragraph 214.322(a)). Alternatively, an applicant who arrived in Australia by boat without authority between 28 November 1989 and 26 April 1991, and was usually a resident of Cambodia before arrival, may establish close links if they were in detention under the Act for a significant part of their stay in Australia and subsequently returned to Cambodia (see paragraph 214.322(b)). An applicant must also have the support of a relative, a community organisation, or another group in Australia accepted by the Minister as having close links with the applicant (see clauses 214.323 and 214.324).
At the decision stage, the Minister must be satisfied that permanent settlement in Australia is appropriate and would not be contrary to Australia's interests (see clause 214.331), that the applicant has been resident in Cambodia for 12 months immediately before the decision (see clause 214.332), and that there are compelling reasons for granting the applicant a visa (see clause 214.338). The applicant must also satisfy public interest and special re-entry criteria (see clauses 214.334 and 214.335). The maximum number of Class 214 visas to be granted in a financial year will be specified by Gazette Notice (see clause 214.333).
The Regulations impose specific obligations and requirements on applicants for the Class 214 visa. Applicants must meet the criteria for close links with Australia, either through familial connections or through detention and return to Cambodia. They must also provide support from a relative, community organisation, or another group in Australia that has close links with them. Additionally, the Minister must be satisfied with several conditions, including the appropriateness of permanent settlement, the applicant’s residency in Cambodia, and compelling reasons for granting the visa. Public interest and special re-entry criteria must also be met. Failure to comply with these requirements can result in the refusal of the visa application.
There are no explicit provisions in the explanatory statement detailing specific offences, penalties, or consequences for breaches of these Regulations. However, under the Migration Act 1958, breaches of visa conditions or regulations can lead to various civil or criminal penalties, including fines, imprisonment, or deportation. The severity of penalties would depend on the nature and seriousness of the breach, as outlined in the broader provisions of the Act.