Migration Amendment Regulations 2000 (No. 3) 2000 No. 108
EXPLANATORY STATEMENT
STATUTORY RULES 2000 NO. 108
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 2000 (No.3)
Subsection 504(1) of the Migration Act 1958 (the Act) provides for the
Governor-General to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, 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 under the Act:
section 31 provides that the regulations are to prescribe classes of visas, and may prescribe criteria for visas of a specified class; and
subsection 504(3) authorises the making of regulations in relation to the deemed receipt of documents.
The purpose of the Regulations is to amend the Migration Regulations 1994 to:
- put beyond doubt that an applicant may be granted a Subclass 866 (Protection) visa where the applicant satisfies the other relevant criteria for the grant of the visa and either:
* the applicant, or a member of the family unit of the applicant, has not been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC (temporary safe haven visas); or
* section 9 1 K of the Act does not apply to the applicant's application because the Minister has made a determination in respect of their application under section 9 1 L of the Act (Schedule 1); and
- overcome problems with regulation 5.03 concerning receipt of documents and deemed receipt times identified by the majority judgment of the Full Federal Court in MIMA v Harinder Pal Singh [20001 FCA 377. The Court held that regulation 5.03 could operate effectively to remove the rig review provided by the Act. The proposed amendment will, in most circumstances, increase the period of time between actual notification of a decision and the expiry of the period for lodging a review application (Schedule 2).
Details of the Regulations are set out in the Attachment.
Regulations 1, 2 and 3, and Schedule 1 of the Regulations are taken to have commenced on 28 April 2000. The retrospectivity of the amendments is not prejudicial to any person and does not therefore contravenes subsection 48(2) of the Acts Interpretation Act 1901. The amendments in Schedule commence on 1 July 2000.
ATTACHMENT
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2000 (No.3)
Regulation 2 - Commencement
This regulation provides that these Regulations commence, or are taken to have commenced, as follows:
on 28 April 2000 - regulations 1, 2 and 3, and Schedule 1; and on 1 July 2000 - Schedule 2.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedules 1 and 2 to these Regulations amend the
Migration Regulations 1994.
Schedule 1 - Amendment taken to have commenced on 28 April 2000
Item 1 - Schedule 1, clauses 866.227 and 866.227A
This item replaces clauses 866.227 and 866.227A with new clause 866.227.
The amendment puts beyond doubt that an applicant may be granted a Subclass 866 (Protection) visa where the applicant satisfies the other relevant criteria for the grant of the visa and either:
the applicant, or a member of the family unit of the applicant, has not been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC; or
section 91 K of the Act does not apply to the applicant's application because the Minister has made a determination in respect of their application under section 9 1 L of the Act.
The amendment will be of particular significance to those applicants who have been offered (or whose family unit members have been offered a temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC, which governs applications for temporary safe haven visas.
Schedule 2 - Amendment commencing on 1 July 2000
Item 1 - Subregulation 5.03(2),
This item amends subregulation 5.03(2) so that, for the purposes of the deemed
receipt of documents, a document must be sent within three days of the date of the
document, not seven days as previously required.