EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 229
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2009 (No. 10)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may 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 provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 to allow certain partners of Australian citizens, permanent residents, and eligible New Zealand citizens, who are otherwise not authorised to make a further application under section 48 of the Act because they have had a visa cancelled or visa application refused, to apply for a partner visa, provided they meet specified objective criteria. This will allow these partners of Australian citizens, permanent residents, and eligible New Zealand citizens to remain in Australia while making an application for a partner visa.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 14 September 2009.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2009.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the
Governor-General may 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, the following provisions may apply:
- subsection 31(3) of the Act which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A but not section 33, 34, 35 or 38 of the Act);
- subsection 31(5) of the Act, which provides that the regulations specify that a visa is a visa of a particular class;
- subsection 40(1) of the Act which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
- subsection 46(1) of the Act, which provides that the regulations may provide the circumstances where an application for a visa is valid;
- subsection 46(3) of the Act, which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and
- subsection 48(1) of the Act, which provides that a non-citizen in the migration zone who does not hold a substantive visa and either after last entering Australia had a visa refused on a certain basis (except on character grounds) or had their visa cancelled on a certain basis (except on character grounds), may, subject to the regulations, apply for a visa of a prescribed class.
ATTACHMENT B
Details of the Migration Amendment Regulations 2009 (No. 10)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 10).
Regulation 2 – Commencement
This regulation provides for the regulations to commence on 14 September 2009.
Regulation 3 – Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).
Schedule 1 – Amendment of Migration Regulations 1994
Item [1] – Regulation 2.12(1)
This item inserts two visa classes ‘(a) Partner (Temporary) (Class UK)’ and ‘(b) Partner (Residence) (Class BS)’ to the classes of visas prescribed for the purpose of section 48 of the Act.
Item [2] – Schedule 1, after paragraph 1214C (3)(g)
This item inserts new paragraphs 1214C(3)(h) and (i) into Schedule 1 to the Principal Regulations, after paragraph 1214C (3) (g). Paragraph 1214C(h) details the criteria to be met by an applicant who would otherwise not be authorized under section 48 of the Act to apply for a partner visa while still in Australia to be able to make an onshore partner visa application. To satisfy the requirements of this paragraph, an applicant cannot have had a visa refused or cancelled under section 501 of the Act or have been refused a spouse, partner or interdependency visa since last entering Australia. The applicant must also provide a completed and signed approved form 40SP by the Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the spouse or de facto partner of the applicant. The applicant must also provide two statutory declarations made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner, declaring that the applicant and the partner are in a married relationship or de facto relationship.
Paragraph 1214C(3)(i) provides that if the applicant is a person to whom section 48 of the Act applies and is a dependent child of the person who has satisfied paragraph (h) then they are taken to have satisfied subparagraphs (h) (iii) and (iv).
The purpose of these amendments is to ensure that under certain circumstances the partner (subclasses 820/801) visas are included as exceptions to the section 48 requirement for further visa applications to be made off shore following the refusal or cancellation of a visa. The amendments also inserts into the Schedule 1 criteria for a Partner (Temporary) (Class UK) visa, the requirement that, if section 48 of the Act is applicable to the applicant, they must not have been refused a visa or had a visa cancelled under section 501 of the Act. This provision ensures those people who have been refused a visa, or had a visa cancelled on character grounds, cannot get around the section 48 bar.
The amendments to Schedule 1 to the Principal Regulations also ensures that applicants who have already made an unsuccessful partner visa application onshore cannot re-apply. This is to prevent frivolous or serial claims from applicants who have no substantive claims or chance of being granted a partner visa.
Finally, the amendments to Schedule 1 to the Principal Regulations require the applicant to produce certain evidence indicating their ability to meet the requirements for the granting of a partner visa. This includes statutory declarations from two other people, declaring that they are in a married or de facto relationship with an Australian citizen, permanent resident or eligible New Zealand resident. This provision ensures that the offshore requirement imposed by section 48 of the Act is only waived for applicants who have a realistic prospect of being able to meet the criteria for a partner visa.