Migration Amendment Regulations 2003 (No. 3)

Administered by Department of Home Affairs

Legislation au F2003B00110 Regulations Not in force Legislative Instrument

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Migration Amendment Regulations 2003 (No. 3) 2003 No. 106

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 106

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2003 (No. 3)

Subsection 504(1) 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, the following provisions may apply:

•       subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class; and

•       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 regulations.

The purpose of the regulations is to amend the criteria for the grant of a Close Ties visa and to amend certain fees and charges.

Part 832 of Schedule 2 to the Migration Regulations 1994 (the Migration Regulations) provides for the grant of a permanent Close Ties visa to a person who has been in Australia for a substantial period and who, during their stay in Australia, has ceased to hold a substantive visa. There are several "streams" of applicants for whom the visa is designed. The "innocent illegals" stream is designed for a person who arrived in Australia as a minor, spent their formative years here, and became illegal as a minor.

Schedule 1 to the Migration Regulations sets out the quantum of the visa application charge imposed on applications for specified visa classes. Parts 1 and 5 of the Migration Regulations impose fees in relation to the nomination of business activities, employer nomination, sponsorship and skills assessments.

The regulations effect changes to the Migration Regulations to:

•       amend the Close Ties visa provisions to:

-       remove the 1 March 2003 amendments which required a person applying under the "innocent illegals" stream to have first entered Australia with their family unit. These amendments respond to concerns that the Close Ties visa provisions could prevent certain deserving applicants from accessing this visa subclass; and

-       preclude a person who has been the holder of a student visa, or previous equivalent entry permit or transitional (temporary) visa, from the grant of a Close Ties visa. This addresses an integrity concern regarding the potential for overseas students in Australia to deliberately choose to become unlawful in an attempt to meet the requirements for a Close Ties visa [items 1101 - 1109]; and

•       provide for the annual indexation of fees and charges in line with general price movements, and make other fee and charge changes. The indexation results in an increase of approximately 3% on this occasion for most charges. The quantum of this increase does not cause the applicable fee limit set out in the Migration (Visa Application) Charge Act 1997 to be exceeded [items 2101 - 2200].

Details of the regulations are set out in the Attachment.

Regulations 1 to 4 and Schedule 1 to these regulations commence on gazettal. As these amendments respond to concerns that the Close Ties visa provisions could prevent certain deserving applicants from accessing this visa subclass, it is desirable that regulations 1 to 4 and Schedule 1 commence without delay.

Schedule 2 to these regulations commences on 1 July 2003 to coincide with the beginning of the 2003-04 financial year.

0304917A-030519Z

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2003 (No. 3).

Regulation 2 - Commencement

This regulation provides that regulations 1 to 4 and Schedule 1 to these Regulations commence on gazettal and Schedule 2 to these Regulations commences on 1 July 2003.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994 (the Migration Regulations) and Schedule 2 amends the Migration Regulations as amended by the Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2003.

Regulation 4 - Transitional

This regulation provides that:

•       the amendments made by Schedule 1 to these Regulations apply in relation to an application for a visa made on or after the commencement of that Schedule; and

•       the amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2003.

Schedule 1 - Amendments commencing on gazettal

Item [1101] - Schedule 2, subparagraph 832.211(3)(c)(i)

Paragraph 832.211(3)(c) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement from subparagraph 832.211(3)(c)(i) for applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) to have first entered Australia as a member of a family unit. The requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

The only requirement under new subparagraph 832.211(3)(c)(i) is that the relevant applicant first entered Australia before the applicant turned 18 years of age.

Item [1102] - Schedule 2, subparagraph 832.211(3)(c)(ii)

Paragraph 832.211(3)(c) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement from paragraph 832.211(3)(c) for applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) to have first entered Australia with their family unit. The requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

A new subparagraph 832.211(3)(c)(ii) is substituted which precludes persons who have been the holder of a student visa, or previous equivalent entry permit or transitional (temporary) visa granted for the purposes of a course of study, from the grant of a Close Ties visa. This addresses an integrity concern regarding the potential for overseas students in Australia to deliberately choose to become unlawful in an attempt to meet the requirements for a Close Ties visa. It was never intended that overseas students should benefit from the Close Ties visa in these circumstances.

Item [1103] - Schedule 2, subparagraph 832.211(3)(c)(vi)

This item makes a technical consequential amendment to subparagraph 832.211(3)(c)(vi), as a result of the amendment made by these Regulations to omit subparagraph 832.211(3)(c)(vii).

Item [1104] - Schedule 2, subparagraph 832.211(3)(c)(vii)

Paragraph 832.211(3)(c) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement in subparagraph 832.211(3)(c)(vii) that applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) must no longer be a member of, nor reside with, the family unit with which they first entered Australia. The requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

Item [1105] - Schedule 2, paragraph 832.212(4)(a)

Subclause 832.212(4) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement from paragraph 832.212(4)(a) for applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) to have first entered Australia as a member of a family unit. This requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

The only requirement under new paragraph 832.212(4)(a) is that the relevant applicant first entered Australia before the applicant turned 18 years of age.

Item [1106] - Schedule 2, paragraph 832.212(4)(b)

Subclause 832.212(4) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement from subclause 832.212(4) for applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) to have first entered Australia with their family unit. This requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

A new paragraph 832.212(4)(b) is substituted which precludes persons who have been the holder of a student visa, or previous equivalent entry permit or transitional (temporary) visa granted for the purposes of a course of study, from the grant of a Close Ties visa. This addresses an integrity concern regarding the potential for overseas students in Australia to deliberately choose to become unlawful in an attempt to meet the requirements for a Close Ties visa. It was never intended that overseas students should benefit from the Close Ties visa in these circumstances.

Item [1107] - Schedule 2, paragraph 832.212(4)(e)

This item makes a technical consequential amendment to paragraph 832.212(4)(e), as a result of the amendment made by these Regulations to omit paragraph 832.212(4)(f).

Item [1108] - Schedule 2, paragraph 832.212(4)(f)

Subclause 832.212(4) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of application by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement in paragraph 832.212(4)(f) that applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) must no longer be a member of, nor reside with, the family unit with which they first entered Australia. This requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

Item [1109] - Schedule 2, paragraph 832.221(3)(b)

Subclause 832.221(3) of Schedule 2 to the Migration Regulations sets out some of the criteria to be satisfied at time of decision by a person seeking to meet the primary criteria for the grant of a Subclass 832 (Close Ties) visa.

This item removes the requirement from subclause 832.221(3) that applicants known as "innocent illegals" (because they became unlawful non-citizens in Australia as minors through no fault of their own) must no longer be a member of, nor reside with, the family unit with which they first entered Australia. This requirement was inserted into the Migration Regulations by Statutory Rules No. 348 of 2002.

This amendment is made in response to concerns that the requirement could have prevented certain deserving applicants from accessing this visa subclass.

A new paragraph 832.221(3)(b) is substituted which reverts to the pre-1 March 2003 Close Ties visa requirement that applicants must not be a member of, nor reside with, the family unit if any, with which they first entered Australia.

Schedule 2 - Amendments commencing on 1 July 2003

Item [2101] (Subregulation 1.20G(5)) to item [2105] (Paragraph 5.38(2)(b))

These items amend Parts 1 and 5 of the Migration Regulations to provide for the annual indexation of specified fees and charges. The indexation will result in an increase to fees and charges of approximately 3% on this occasion, in line with general price movements.

Item [2106] - Paragraph 5.40(1)(b)

Regulation 5.40 of Part 5 of the Migration Regulations permits the National Office of Overseas Skills Recognition (NOOSR) and the Department of Employment and Workplace Relations (DEWR) to charge a fee for the assessment of a person's work qualifications and experience for migration purposes. The agency responsible for these assessments within DEWR is Trades Recognition Australia.

Given the substantial increase in the number of applications from potential migrants and improvements in conducting assessments, the current fee structure for skills assessments by DEWR is being lowered.

This item reduces the fee in subparagraph 5.40(1)(b)(i) for a standard skills assessment by DEWR from $390 to $300. The fee in subparagraph 5.40(1)(b)(ii) for an optional priority skills assessment by DEWR is reduced from $595 to $500.

This item also makes a technical amendment to paragraph 5.40(1)(b) reflect the current departmental name for DEWR.

Item [2107] - Subregulation 5.40(2)

This item amends subregulation 5.40(2) of Part 5 of the Migration Regulations to reduce the fee for an internal review of a standard or optional priority skills assessment by DEWR from $390 to $300. This decrease in fee is for the same reason as outlined above.

Item [2108] (Schedule 1, paragraph 1104A(2)(a)) to item [2196] (Schedule 1, sub-subparagraph 1222(2)(a)(iii)(C))

These items amend Schedule 1 of the Migration Regulations to provide for the annual indexation of specified fees and charges. The indexation will result in an increase to fees and charges of approximately 3% on this occasion, in line with general price movements.

Item [2197] - Schedule 1, subparagraph 1222(2)(a)(iv)

This item increases the first instalment of the visa application charge for certain Student (Temporary) (Class TU) visa applicants. The increase in the charge is from $315 to $400 and is due to the increase in the International Education Contribution fee plus approximately 3% indexation.

Item [2198] (Schedule 1, paragraph 1223(2)(a)) to item [2200] (Schedule 1, subparagraph 1225(2)(b)(i))

These items amend Schedule 1 of the Migration Regulations to provide for the annual indexation of specified fees and charges. The indexation will result in an increase to fees and charges of approximately 3% on this occasion, in line with general price movements.

 

Overview

The Migration Amendment Regulations 2003 (No. 3), enacted in 2003, were introduced to address specific issues related to the Close Ties visa under the Migration Act 1958. These regulations were issued under the authority of the Minister for Immigration and Multicultural and Indigenous Affairs and were designed to respond to concerns about the accessibility of the Close Ties visa for "innocent illegals" and to address integrity concerns regarding the potential misuse of the visa by overseas students. The primary objective of these regulations was to amend the criteria for the grant of a Close Ties visa and to revise certain fees and charges associated with visa applications. The regulations amended the Migration Regulations 1994 to remove certain entry requirements for "innocent illegals" and to exclude individuals who had previously held a student visa from being eligible for a Close Ties visa. Furthermore, the regulations included provisions for the annual indexation of fees and charges, resulting in an approximate 3% increase across various charges in line with general price movements.

Scope and Application

The Migration Amendment Regulations 2003 (No. 3) amends the Migration Regulations 1994, which implement the Migration Act 1958, to modify the criteria for the grant of a Close Ties visa and adjust certain fees and charges. The regulations apply to individuals and entities involved in visa applications and related processes within Australia. Specifically, the regulations target applicants for the Close Ties visa, particularly those known as "innocent illegals," who became unlawful non-citizens in Australia as minors. The amendments address concerns that certain criteria could have barred deserving applicants from accessing this visa subclass and aim to enhance the integrity of the visa application process by preventing overseas students from deliberately becoming unlawful to meet visa requirements. The changes include removing specific entry requirements for "innocent illegals" and precluding individuals who have held student visas from obtaining a Close Ties visa. Additionally, the regulations index fees and charges by approximately 3% in line with general price movements, with some specific fee adjustments for skills assessments and visa application charges. These amendments apply to visa applications made on or after the commencement dates of the respective schedules, with some changes taking effect immediately upon gazettal and others on 1 July 2003.

Key Provisions

The Migration Amendment Regulations 2003 (No. 3) primarily amend the criteria for granting a Close Ties visa under the Migration Regulations 1994 and adjust certain fees and charges. Regulation 1 names the Regulations as the Migration Amendment Regulations 2003 (No. 3). Regulation 2 specifies that certain amendments and Schedule 1 commence on gazettal, while Schedule 2 commences on 1 July 2003. Regulation 3 amends the Migration Regulations 1994, and Regulation 4 specifies the application of these amendments to visa applications. The regulations impose several obligations on applicants for a Close Ties visa. Firstly, applicants previously required to have entered Australia with their family unit are no longer subject to this requirement. Secondly, applicants who have held a student visa or equivalent entry permit for study are precluded from being granted a Close Ties visa. This addresses integrity concerns about overseas students deliberately becoming unlawful to qualify for this visa. Additionally, applicants must demonstrate that they entered Australia before turning 18 years of age and must not be members of, or reside with, the family unit with which they first entered Australia. The regulations also introduce financial obligations related to visa applications and assessments. Fees for skills assessments and their internal reviews are reduced, reflecting improvements in assessment processes. Visa application charges and other fees are indexed annually, with an approximate 3% increase in line with general price movements. These adjustments aim to keep fees in line with inflation and operational costs. Failure to comply with the requirements set out in these regulations can result in the refusal of a visa application. In particular, not meeting the criteria for the Close Ties visa, such as the new requirements for "innocent illegals" or the disqualification of former student visa holders, can lead to the denial of the visa. Additionally, overcharging or undercharging fees as per the updated fee structures can result in administrative penalties. While the regulations do not explicitly state criminal or civil penalties for non-compliance, breaches of immigration regulations can generally lead to fines, imprisonment, or both under the Migration Act 1958. The specific penalties depend on the nature and severity of the breach.

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