EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 33
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2011 (No. 2)
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 of the Act in Attachment A.
The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to enable an applicant for a Return (Residence) (Class BB) visa who is in Australia, to make that application by telephone to a designated telephone number, or designated telephone numbers, between designated times on business days, without the need to attend an office of Immigration in Australia.
The amendment introduces the option of lodgement by telephone for Return (Residence) (Class BB) visa applicants who are in Australia and who do not want or are unable to apply online, or experience difficulties in physically travelling to an office of the department.
Details of the Regulations are set out in Attachment B.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 2 April 2011.
The Office of Best Practice Regulation (the OBPR) has been consulted and advised that the regulation amendments are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition. The OBPR consultation reference is 11703.
No further consultations were undertaken, because the amendments to not have any potential implications relating to other government departments or agencies, non government organisations, or any other organisation or interested party.
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.
Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.
In addition, the following provisions may apply:
- 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(4) of the Act provides that the regulations may prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
ATTACHMENT B
Details of the Migration Amendment Regulations 2011 (No. 2)
Regulation 1 – Name of Regulations
Regulation 1 provides that the title of the Regulations is the Migration Amendment Regulations 2011 (No. 2).
Regulation 2 – Commencement
Regulation 2 provides that the Regulations commence on 2 April 2011.
Regulation 3 – Amendment of Migration Regulations 1994
Regulation 3 provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).
Schedule 1 – Amendments
Item [1] – Subregulation 2.09(1)
This item omits each mention of a “Gazette Notice” and inserts “the Minister in an instrument in writing”.
This amendment ensures that subregulation 2.09(1) is consistent with new subregulation (2) and (3), which is inserted by item [2], in providing that information be specified by the Minister in an instrument in writing, and not by Gazette Notice.
The Legislative Instruments Act 2003 commenced on 1 January 2005 introduced Legislative Instruments. Legislative Instruments include instruments that are made under enabling regulations. This amendment updates the Principal Regulations and ensures consistency with the provisions of the Legislative Instruments Act 2003.
Item [2] –Subregulation 2.09(2)
This item substitutes subregulation 2.09(2) with new subregulations 2.09(2) and (3) in Division 2.2 of Part 2 to the Principal Regulations.
Current subregulation 2.09(2) provides that an oral application for a Return (Residence) (Class BB) visa may be made at an office of Immigration in Australia (whether specified by Gazette Notice for the purposes of subregulation 2.09(1) or not) and only by attendance at that office.
New subregulation 2.09(2) provides that an oral application for a Return (Residence) (Class BB) visa may be made in person at an office of Immigration in Australia whether or not the office has been specified by the Minister in an instrument in writing for the purposes of subregulation 2.09(1).
New subregulation 2.09(3) provides that an oral application for a Return (Residence) (Class BB) visa may be made:
- using a telephone number specified by the Minister in an instrument in writing for new subregulation 2.09(3) and
- during the times specified in the instrument.
This item also inserts a note that provides that in accordance with item 1128 of Schedule 1 to the Principal Regulations, the applicant must be in Australia when making an oral application for a Return (Residence) (Class BB) visa.
Item [3] – Schedule 1, paragraph 1128(3)(a)
This item omits “For an application (not being an Internet application):” and inserts “For an application that is not an Internet or oral application:” in paragraph 1128(3)(a) of Schedule 1 to the Principal Regulations.
This amendment provides that the requirements provided for in paragraph 1128(3)(a) of Schedule 1 to the Principal Regulations do not apply to a Return (Residence) (Class BB) visa application which is an internet or oral application.
This amendment allows consistency with the amendment made by item [2] and item [5], which provides specifically for the requirements of an oral application.
Item [4] –Schedule 1, subparagraph 1128(3)(a)(iii)
This item substitutes subparagraph 1128(3)(a)(iii) with new subparagraph 1128(3)(a)(iii) of Schedule 1 to the Principal Regulations.
Current paragraph 1128(3)(a)(iii) provides that an application for a Return (Residence) (Class BB) visa made in Australia may be an oral application or an application in writing, otherwise in accordance with form 1085, if accompanied by presentation of a valid passport.
New subparagraph 1128(3)(a)(iii) excludes the reference to oral applications, and only provides for written applications. The new subparagraph provides consistency with the amendments made by item [2] and item [5], which provide specifically for the requirements of an oral application for a Return (Residence) (Class BB) visa.
New subparagraph 1128(3)(a)(iii) provides that an application for a Return (Residence) (Class BB) visa made in Australia may be made in writing, but not in accordance with form 1085, if it is accompanied by the presentation of a valid passport.
Item [5] –Schedule 1, after paragraph 1128(3)(b)
This item inserts new paragraph 1128(3)(ba) after paragraph 1128(3)(b) of Schedule 1 to the Principal Regulations.
New paragraph 1128(3)(ba) provides the requirements of a valid oral application for a Return (Residence) (Class BB) visa.
New paragraph 1128(3)(ba) provides that for an oral application:
- the application must be made in Australia, but not in immigration clearance; and
- the applicant must be in Australia to make an application in Australia; and
- the application must be made as permitted by the requirements in subregulation 2.09(2) or (3) as made by item [2]; and
- for an application that is made as permitted by new subregulation 2.09(2) as made by item [2], the application must be accompanied by the presentation of a valid passport.