Migration (1993) Regulations (Amendment) 1994 No. 39
EXPLANATORY STATEMENT STATUTORY RULES 1994 No. 39
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, 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 create a new class of visa and entry permit - Class 775 (designated persons (child) (temporary)) visa and entry permit - to allow certain children under the age of 18 who are in immigration detention to be released from detention. It is a prescribed criterion for an applicant to be released from custody that a care arrangement has been made between the applicant and an Australian permanent resident or an Australian citizen and that the Minister is satisfied that the care arrangement is in the best interests of the child. The Minister is authorised to require the person entering into the care arrangement to undertake to meet all expenses for maintaining the child while under the care arrangement.
The entry permit granted to a successful applicant cannot be used for the purpose of obtaining permanent residence. It has effect only until decisions on claims to refugee status and applications for entry permits are finalised.
Details of the Regulations are as follows: Regulation 1 - Amendment
This regulation provides For the Migration (1993) Regulations to be amended as set out in these Regulations. The Regulations commence on gazettal.
Regulation 2 - Schedule 1 (Classification of visas and entry permits)
Subregulation 2.1 inserts new Class 775 (Designated persons (child) (temporary)) visa and entry permit, created by these Regulations, as Item 2801C in Division 2.8 - Group
2.8 (Miscellaneous) of Schedule 1 of the Migration (1993) Regulations.
Regulation 3 - Schedule 2, Chapter 2.8 (Miscellaneous visas and entry permits)
Subregulation 3.1 inserts new Part 775 - Class 775 (Designated persons (child) (temporary)) visa and entry permit into the Migration (1993) Regulations.
Details of the new Part are as follows:
Part 775 - Class 775 (Designated persons (child) (temporary)) visa and entry permit
The period of validity for the entry permit is set out at subdivision 775.52. The criteria to be satisfied for a Class 775 visa before entry are prescribed in clauses 775.321 and
775.322 and clauses 775.331 and 775.336. The criteria to be satisfied for a Class 775 entry permit are prescribed in clauses 775.721 to 775.722 and clauses 775.731 to 775.736. There is no charge for the grant of the visa or entry permit (Division 775.8). Conditions applicable to the visa and entry permit are set out in subdivisions 775.341 and 775.741 respectively.
The Regulations commence on gazettal.
Overview
The Migration (1993) Regulations (Amendment) 1994 No. 39 were enacted by the Parliament of Australia to address the need for a mechanism to allow certain children under the age of 18 who are in immigration detention to be released from detention. This amendment to the Migration (1993) Regulations was issued under the authority of the Minister for Immigration and Ethnic Affairs and is consistent with the Migration Act 1958. The policy objective of these Regulations is to create a new visa and entry permit, specifically Class 775 (Designated persons (child) (temporary)) visa and entry permit, to facilitate the release of children in immigration detention under certain conditions. This new visa and entry permit are designed to ensure that these children can be placed with Australian permanent residents or citizens, provided the Minister is satisfied that the care arrangement is in the child’s best interests. Importantly, the entry permit granted does not allow for permanent residence and is only effective until decisions on refugee status claims and entry permit applications are finalised.
Scope and Application
The Migration (1993) Regulations (Amendment) 1994 No. 39, issued under the authority of the Minister for Immigration and Ethnic Affairs, amend the Migration (1993) Regulations to introduce a new visa and entry permit, specifically the Class 775 (Designated persons (child) (temporary)) visa and entry permit. This amendment is made under the Migration Act 1958 and aims to facilitate the release of certain children under the age of 18 who are in immigration detention by allowing them to be released into care arrangements with Australian permanent residents or citizens. The regulations specify that a care arrangement must be made and that the Minister must be satisfied that this arrangement is in the child's best interests. Additionally, the Minister has the authority to require the person entering into the care arrangement to meet all expenses for maintaining the child. Notably, the entry permit cannot be used for the purpose of obtaining permanent residence and is only effective until decisions on claims to refugee status and applications for entry permits are finalised. These regulations apply to all persons who are subject to the Migration Act 1958 and the Migration (1993) Regulations, specifically targeting children in immigration detention who meet the criteria for the Class 775 visa and entry permit.
Key Provisions
The Migration (1993) Regulations (Amendment) 1994 No. 39 introduces a new Class 775 visa and entry permit under the Migration Act 1958 (the Act). This new class is designated for certain children under the age of 18 who are in immigration detention, allowing them to be released from detention (Regulation 2.1). These provisions are designed to provide temporary relief to minors in detention by enabling their release into the care of an Australian permanent resident or citizen, subject to certain conditions (Regulation 3.1).
Under the Act, the primary obligations imposed on the parties include ensuring that a care arrangement is made for the child (Section 181). This arrangement must be approved by an Australian permanent resident or citizen, and the Minister must be satisfied that the arrangement is in the best interests of the child (Section 23). The person entering into the care arrangement must also agree to meet all expenses for maintaining the child (Section 33). Additionally, the entry permit granted under this new class is strictly temporary and cannot be used to obtain permanent residence (Regulation 775.741).
Failure to comply with the provisions of these Regulations can lead to various consequences. While specific penalties are not detailed in the explanatory statement, breaches of the Act or Regulations generally result in civil or criminal penalties. The Migration Act 1958 outlines that penalties for non-compliance can include fines and imprisonment. The severity of the penalties depends on the nature and extent of the breach, but they can be substantial, reflecting the importance of adhering to the legislative requirements designed to protect the welfare of minors in immigration detention.