Migration Amendment Regulations 1999 (No. 9) 1999 No. 155
EXPLANATORY STATEMENT
STATUTORY RULES 1999 NO. 155
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 1999 (No. 9)
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.
In addition, regulations may be made pursuant to the following powers:
subsection 41(2) of the Act provides that, without limiting the generality of the section, the regulations may provide that visas or visas of a specified class are subject to specified conditions, including but not limited to a condition that a further visa cannot be granted and a condition restricting work rights.
The purpose of the Regulations is to amend the Migration Regulations 1994 to provide limited work rights for holders of Subclass 448 (Kosovar Safe Haven (Temporary)) visas. The condition gives the visa holder a limited work right to work 20 hours per week
Details of the Regulations are as follows:
Regulation 1 - Name of regulations
This regulation provides that these regulations are the Migration Amendment Regulations 1999 (No. 9).
Regulation 2 - Commencement
This regulation provides that these regulations commence on gazettal.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that the Migration Regulations 1994 are amended as set out in Schedule 1 to these regulations.
Schedule 1 - Amendments
Item 1 - Schedule 2, clauses 449.611 and 448.612
This item amends clauses 448.611 and 448.612 to provide that condition 8104 is a mandatory condition for all Subclass 448 visas. This replaces condition 8101 ("The holder must not engage in work in Australia").
Overview
The Migration Amendment Regulations 1999 (No. 9) were enacted to address the specific needs of individuals holding Subclass 448 (Kosovar Safe Haven (Temporary)) visas by amending the Migration Regulations 1994. The Migration Act 1958 empowers the Governor-General to issue regulations necessary for the Act's implementation, and these regulations were made under section 504, with additional authority from subsection 41(2) of the Act, which allows for the specification of conditions on visas. The primary objective of these regulations is to provide limited work rights to holders of Subclass 448 visas, allowing them to work up to 20 hours per week, as opposed to the previous restriction that prohibited any work engagement. These regulations were issued by the Minister for Immigration and Multicultural Affairs and came into effect upon gazettal.
The explanatory statement clarifies that the Migration Amendment Regulations 1999 (No. 9) specifically target the amendment of the Migration Regulations 1994, introducing a mandatory condition 8104 for all Subclass 448 visas, which supersedes the former condition 8101. This change facilitates the integration of visa holders into the Australian workforce by granting them a limited opportunity to earn income while maintaining the temporary nature of their stay. The regulations were designed to ensure that the amended conditions are effectively communicated and enforced through Schedule 1, which details the modifications to clauses 448.611 and 448.612 of the Migration Regulations 1994.
Scope and Application
The Migration Amendment Regulations 1999 (No. 9) amend the Migration Regulations 1994 to adjust the work rights for holders of Subclass 448 (Kosovar Safe Haven (Temporary)) visas. These regulations apply to individuals who hold or apply for a Subclass 448 visa, a subclass specifically designated for individuals who have been granted temporary protection in Australia under the Kosovar Safe Haven category. The amendments provide these visa holders with a limited work right, allowing them to work up to 20 hours per week, thereby replacing the previous prohibition on any form of work with a more flexible condition. These regulations are made under the authority of the Migration Act 1958 and are intended to provide necessary adjustments to the visa conditions to facilitate better integration and self-sufficiency for the visa holders. The changes commence on the date of their gazettal, ensuring immediate effect upon publication.
Key Provisions
The Migration Amendment Regulations 1999 (No. 9) primarily amend the Migration Regulations 1994 to introduce a new mandatory condition for all Subclass 448 (Kosovar Safe Haven (Temporary)) visas (reg 3, Sch 1, items 1). This amendment replaces the previous condition 8101, which prohibited the visa holder from engaging in any work in Australia, with condition 8104, which now permits the visa holder to work a limited number of hours per week (Sch 1, items 1). Specifically, the new condition allows visa holders to work up to 20 hours per week.
The Regulations impose obligations on holders of Subclass 448 visas to adhere to the specified work conditions. These conditions include the limitation on the number of hours that can be worked per week, which is a significant departure from the previous prohibition on any form of employment. The holders must ensure they do not exceed the permitted hours to remain compliant with the visa conditions (Sch 1, items 1). Additionally, visa holders are required to notify the Department of Home Affairs if their employment situation changes, thereby ensuring that the Department maintains accurate records of their employment status.
Failure to comply with the work conditions specified in the Regulations may result in the visa being cancelled. Under section 116 of the Migration Act 1958, the Minister may cancel a visa if the holder fails to comply with a condition of the visa. Additionally, there may be civil and criminal penalties for overstaying the permitted work hours, as stipulated in section 233 of the Act, which includes fines and imprisonment. The maximum penalties for breaches of visa conditions can include fines of up to $27,500 for individuals and $137,500 for corporations, along with potential imprisonment terms, depending on the severity and frequency of the breaches.