Migration (1993) Regulations (Amendment) 1993 No. 169
EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 169
Issued by the Authority of the Minister for Immigration and Ethnic Affair
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. In addition, section 23 of the Act enables regulations to be made providing, inter alia, for different classes of visas and that a person is entitled to be granted a visa of a particular class if the person satisfies all the criteria prescribed in relation to that class.
The regulations amend the prescribed criteria in relation to visas of :
Class 208 (East Timorese in Portugal (special assistance));
Class 209 (Citizens of the former Socialist Federal Republic of Yugoslavia displaced persons (special assistance));
Class 210 (Minorities of former USSR (special assistance));
Class 211 (Burmese (special assistance));
Class 212 (Sudanese (special assistance)); and
Class 213 (Displaced Burmese in Thailand (special assistance))
to provide that where an applicant is unable to meet the prescribed health criteria, the Minister may waive the health criteria provided a Commonwealth medical officer has formed the opinion that the applicant is free of tuberculosis and any other communicable disease of a fatal or serious nature and any disease or condition which is a threat to public health in Australia, and the applicant is not likely to produce offspring with such a disease or condition and would not prejudice access to health care by any Australian citizen or permanent resident, and the Minister is satisfied that grant of the visa would be unlikely to result in undue harm or cost to the Australian community.
The regulations also amend the prescribed criteria in relation to applicants who are members of the family unit of applicants for the above classes of visas as primary persons. The Minister may also waive the health criteria for applicants who are
members of the family unit of applicants who are primary persons, provided the same circumstances exist as stated above.
Details of the regulations are as follows:
Regulation 1 provides for the Migration (1993) Regulations to be amended as set out in these Regulations.
Regulation 2 provides for amendments to be made to parts 208, 209, 210, 211, 212 and 213 of Schedule 2, Chapter 1.3 (Permanent resident (refugee and humanitarian) visas and entry permits) of the Migration (1993) Regulations. These amendments have the effect of replacing as criteria to be satisfied by applicants who are primary persons in relation to visas of Classes 208, 209, 210, 211, 212 and 213, respectively, the criteria set out at clauses 4005 and 4006 of Schedule 4 of the Migration (1993) Regulations with the criteria set out at clauses 4007 and 4008. The criteria prescribed by clauses 4007 and 4008 of Schedule 4 are health criteria which may be waived by the Minister under certain circumstances.
Regulation 3 provides for an amendment to subparagraph 013.333(b)(i) of Schedule 3 (Provisions with respect to the grant of visas and entry permits included in certain groups to secondary persons) of the Migration (1993) Regulations. The effect of this amendment is to prescribe as criteria to be satisfied by applicants who are secondary persons in relation to an application for a visa of Classes 208, 209, 210, 211, 212 and 213, the criteria set out at clauses 4007 and 4008 of Schedule 4 of the Migration (1993) Regulations. These clauses prescribe health criteria which may be waived by the Minister under certain circumstances. Previously these applicants were required to meet the criteria set out at clauses 4005 and 4006, which prescribe health criteria which cannot be waived.
The regulations commence on gazettal.
Overview
The Migration (1993) Regulations (Amendment) 1993 No. 169 was enacted by the Minister for Immigration and Ethnic Affairs under the authority of the Migration Act 1958, with the aim of addressing the specific health criteria requirements for various classes of special assistance visas. The problem the regulations were introduced to address involved the inflexibility of the health criteria for applicants from certain regions, such as East Timor, the former Socialist Federal Republic of Yugoslavia, and Burma (Myanmar), who were seeking humanitarian visas. The policy objective of these amendments is to allow the Minister for Immigration to exercise discretion in waiving health criteria if certain conditions are met, thereby facilitating access to humanitarian visas for individuals who might otherwise be unable to meet strict health requirements. This flexibility aims to support those in genuine need of humanitarian assistance without compromising public health or resources in Australia.
Scope and Application
The Migration (1993) Regulations (Amendment) 1993 No. 169 pertains to specific classes of visas under the Migration Act 1958, namely Class 208 (East Timorese in Portugal (special assistance)), Class 209 (Citizens of the former Socialist Federal Republic of Yugoslavia displaced persons (special assistance)), Class 210 (Minorities of former USSR (special assistance)), Class 211 (Burmese (special assistance)), Class 212 (Sudanese (special assistance)), and Class 213 (Displaced Burmese in Thailand (special assistance)). These regulations amend the health criteria that applicants must meet for these visa classes and allow the Minister to waive these health criteria under certain conditions. The Act applies to any person who is either a primary applicant for these specific visa classes or a secondary applicant who is a family member of the primary applicant. The regulations extend to the whole of Australia as they are amendments to the Migration (1993) Regulations, which are subordinate to the Migration Act 1958. The regulations do not specify any exclusions but do outline the circumstances under which health criteria may be waived by the Minister. The Minister may waive the health criteria if a Commonwealth medical officer certifies that the applicant is free of specified diseases and conditions, is not likely to produce offspring with such conditions, and would not prejudice access to health care for Australian citizens or permanent residents. The Minister must also be satisfied that granting the visa would not result in undue harm or cost to the Australian community. These amendments apply nationally and the regulations came into effect upon gazettal.
Key Provisions
The Migration (1993) Regulations (Amendment) 1993 No. 169 introduces significant changes to the health criteria for applicants for specific classes of visas, namely Class 208 (East Timorese in Portugal (special assistance)), Class 209 (Citizens of the former Socialist Federal Republic of Yugoslavia displaced persons (special assistance)), Class 210 (Minorities of former USSR (special assistance)), Class 211 (Burmese (special assistance)), Class 212 (Sudanese (special assistance)), and Class 213 (Displaced Burmese in Thailand (special assistance)). Regulation 2 and 3 alter the criteria to allow for a waiver of the health requirements under certain conditions. Specifically, where an applicant is unable to meet the prescribed health criteria, the Minister may waive these requirements if a Commonwealth medical officer confirms that the applicant is free from tuberculosis and other serious communicable diseases, poses no threat to public health, and would not prejudice access to healthcare for Australian citizens or permanent residents. The Minister must also be satisfied that granting the visa would not result in undue harm or cost to the Australian community.
These regulations impose certain obligations on the parties involved, primarily on the Minister for Immigration and Ethnic Affairs, who is tasked with making the decision to waive health criteria under the specified conditions. The Minister must consider the medical officer's opinion, assess the potential threat to public health, and determine whether the granting of the visa would cause undue harm or cost to the Australian community. For applicants, the obligation is to provide any necessary medical information and to meet other criteria as specified in the regulations.
Breaching the requirements set out in these regulations could lead to various consequences. For instance, if a Minister makes a decision to grant a visa without adhering to the stipulated health criteria, this could potentially result in harm to public health or increased costs to the Australian community. However, the regulations do not explicitly outline specific offences or penalties for breach. Instead, any adverse outcomes resulting from such breaches would likely be addressed through other relevant legislation or administrative processes. The emphasis is on ensuring that the waiver of health criteria is exercised judiciously to protect public health and community interests.