Migration Amendment Regulations 1998 (No. 11) 1998 No. 306
EXPLANATORY STATEMENT
STATUTORY RULES 1998 NO. 306
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 1998 (No. 11)
Section 504 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 to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(a) of the Act provides that the regulations may provide for the
charging and recovery of fees in respect of any matter under the Act or the
regulations;
- paragraph 504(1)(b) of the Act provides that the regulations may make provision for the remission, refund or waiver of fees which may be prescribed by the regulations, and for exempting persons from the payment of such fees; and
- paragraph 504(1)(e) of the Act provides that regulations may be made in relation to the giving, lodging and serving of documents on the Minister, the Secretary or any other person or body.
In addition, regulations may be made pursuant to the following powers:
- subsection 31 (3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- section 45 of the Act provides that the Regulations may make provision in relation
to applications for visas and may prescribe the way for making applications for a visa of a specified class in specified circumstances, and in specified circumstances for a visa of a specified class; and may provide for the place in which an applicant must be when an application for a visa of a specified class is made;
- section 45B of the Act provides that the amount of visa application char is the amount, not exceeding the visa application charge limit, prescribed in relation to the application; and
- section 45C of the Act provides that the Regulations may provide for the visa application charge to be payable in instalments, specify how the instalments are to be calculated and when they are payable and make provision for working out how much visa application charge is to be paid and the time the charge is to be paid.
The purpose of the Regulations is to introduce a greater level of objectivity into the assessment of 'carers'. Persons who apply for a visa as a carer will only be granted permanent residence if their eligible relative has a permanent or long-term need for assistance due to a medical condition, where that assistance cannot be reasonably obtained from other relatives or existing services in Australia. Health Services Australia will assess the medical condition. That condition must be causing physical impairment of the ability of the eligible relative to attend to the practical aspects of daily life.
In particular, the Regulations:
- require that the eligible relative (or member of the family unit of that relative) with the claimed medical condition which affects their ability to attend to practical aspects of daily life have that condition assessed by Health Services Australia (items 2, 3, 6, 9, 12 and 14);
- require that to be a carer, the person whose medical condition is assessed by Health Services Australia must be given a rating, calculated under the Impairment Tables, which is equal to or exceeds a specified impairment rating (item 3);
- provide that the substantial and continuing assistance to be provided by the applicant relates to the impairment of the ability of the relative to attend to practical aspects of daily life (item 3);
- provide discretion to waive the Second Instalment Visa Application Charge where the Minister so decides (items 5, 8, 11 and 13); and
- make consequential amendments (items 1, 4, 7, 10, 15, 16, 17, 18, 19, 20, 21 and 22).
Details of the proposed Regulations are set out in the Attachment.
The Regulations commence on 1 December 1998.
ATTACHMENT
Regulation 1 - Name of regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 1998 (No. 11).
Regulation 2 - Commencement
This regulation provides that these regulations commence on 1 December 1998.
Regulation 3 - Amendment of Migration Regulations
This regulation provides for the Migration Regulations 1994 to be amended as set out in Schedule 1.
Schedule 1 - Amendments of Migration Regulations
Item 1 - Regulation 1.03, definition of special need relative Item 2 - Regulation 1.03
Items 1 and 2 omit the existing definition of special need relative and replaces the phrase 14 special need relative" with the word "care?' respectively. The ' definition of carer is set out in new regulation 1.15A4 which is inserted by these regulations.
Item 3 - After regulation 1.15
This item inserts new regulation 1.15AA, which provides a definition of carer. The purpose of this new definition is to introduce more objectivity into the assessment process.
New subregulation 1.15AA(1) provides that an applicant for a visa is a carer if.
* the applicant for the visa is a relative of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident, or an eligible New Zealand citizen (the resident); and
* according to a certificate that meets the requirements of subregulation 1.15AA(2):
- the resident, or member of the family unit of the resident, has a medical condition that is causing physical impairment of the ability of that person to attend to practical aspects of daily life; and
- the physical impairment has a rating (calculated tinder the Impairment Tables in the Social Security Act 1991) which is equal to, or exceeds, the impairment rating specified by Gazette Notice; and
- because of the physical impairment, the resident needs, and will continue to need for a period of at least 2 years, direct assistance in attending to the practical aspects of daily life;
* the assistance provided by the applicant cannot be reasonably obtained from other relatives or existing services in Australia; and
* the applicant is willing and able to provide the resident substantial and continuing assistance of the kind required.
New subregulation 1. 15AA(2) provides that the certificate must be issued by Health Services Australia (HSA) in relation to a medical assessment, or review of a medical assessment previously carried out on behalf of HSA.
New subregulation 1. 15AA(3) provides that the Minister is to take the opinion in a medical assessment certificate as correct for the purposes of deciding whether the resident or member of the family unit has a medical condition that requires a carer.
The purpose of this subclause is to ensure that the applicant cannot request the decision maker to revisit the medical assessment by HSA.
New subregulation 1. 15AA(4) defines "Health Services Australia" and "Impairment Tables". These definitions are inserted as a consequence of the changes to the assessment process of the relative's medical condition.
Item 4 - Schedule 1, subparagraph 1107(2)(b)(i)
This item makes a technical amendment to subparagraph 1107(2)(b)(i) consequential to new subparagraph 1107(2)(b)(ii).
Item 5 - Schedule 1, subparagraph 1107(2)(b)(ii)
This item omits subparagraph 1107(2)(b)(ii) and substitutes a new subparagraph, which provides that an applicant who is a carer need not pay the second instalment of the visa application charge if the Minister has decided the payment is likely to cause, or has caused, severe financial hardship.
Item 6 - Schedule 1, after paragraph 1107(3)(c)
This item inserts new paragraph 1107(3)(d) to provide that an applicant claiming to be a carer must provide satisfactory evidence that the relative who requires the carer has sought a medical assessment by HSA.
Item 7 - Schedule 1, subparagraph 1115(2)(b)(i)
This item makes a technical amendment to subparagraph 1115(2)(b)(i) as a consequence of new subparagraph 1115(2)(b)(ii).
Item 8 - Schedule 1, subparagraph 1115 (2)(b)(ii)
This item omits subparagraph 1115(2)(b)(ii) and substitutes anew subparagraph which provides that an applicant who is a carer need not pay the second instalment of the visa application charge where the Minister has decided the payment is likely to cause, or has caused, severe financial hardship.
Item 9 - Schedule 1, after paragraph 1115(3)(d)
This item inserts new paragraph 1105(3)(e) to provide that an applicant claiming to be a carer must provide satisfactory evidence that the relative who requires the carer has sought a medical assessment by HSA.
Item 10 -Schedule 1, subparagraph 1119(2)(b)(i)
This item makes a technical amendment to subparagraph 1119(2)(b)(i), consequential to new subparagraph 1119(2)(b)(ii).
Item 11 - Schedule 1, subparagraph 1119(2)(b)(i)
This item substitutes new subparagraph 1119(2)(b)(ii) to provide that an applicant who is a carer need not pay the second instalment of the visa application charge where the Minister has decided the payment is likely to cause, or has caused, severe financial hardship.
Item 12 - Schedule 1, after paragraph 1119(3)(c)
This item inserts a new paragraph 1119(3)(d) to provide that an applicant claiming to be a carer must provide satisfactory evidence that the relative who requires the carer has sought a medical assessment by HSA.
Item 13 - Schedule 1, paragraph 1125(2)(b)
This item omits existing paragraph 1125(2)(b) and substitutes a new paragraph that provides that an applicant who is a carer need not pay the second instalment of the visa application charge where the Minister has decided the payment is likely to cause, or has caused, severe financial hardship.
Item 14 - Schedule 1, after paragaph 1125(3)(b)
This item inserts new paragraph 1125(3)(c), which provides that an applicant claiming to be a carer must provide satisfactory evidence that the relative who requires the carer has sought a medical assessment by HSA.
Items 15 and 18
Items 15 and 18 amend the Notes after Divisions 104.1 and 806.1 respectively to replace the words "special need relative" with the word "carer", as a consequence of the removal of the definition of special need relative and substitution of a definition of carer.
Item 16 - Schedule 2, paragraph 104.211(3)(a)
Item 17 - Schedule 2, clause 104.211
Item 19 - Schedule 2, paragraph 806.211(d)
Item 20 - Schedule 2, clause 806.213
Item 21 - Schedule 2, clause 806.221
These items amend clauses 104.221, 806.213 and 806.221 and paragraphs 104.211(3)(a), 806.211 (d) to remove the requirement for applicants to be assessed against the definition of carer at the time of application. The purpose of these amendments is to enable applicants who do not have a completed medical assessment at the time of application to satisfy the relevant criteria at the time of application for a Subclass 104 (Preferential Family) visa or Subclass 806 (Family) visa. Applicants must satisfy the definition of carer at the time of decision.
Item 22 - Additional amendments
This item amends sub-subparagraphs 1107(2)(a)(iv), 1115(2)(a)(v), and 1125(2)(a)(ii) and paragraphs 104.224A(b), 104.226(1)(c) and 104.324A(b) to replace the words "special need relative" with the word "carer", as a consequence of the removal of the definition of special need relative and substitution of a definition of carer.