EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 135

Issued by the Minister for Immigration

and Multicultural and Indigenous Affairs

Migration Act 1958

Migration (Côte D’Ivoire – United Nations Security Council Resolutions) Regulations 2005

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;
• paragraph 116(1)(g) of the Act, which provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder; and
• subsection 116(2) of the Act, which provides that the regulations may prescribe circumstances under which the Minister must not cancel a visa under section 116 of the Act.

These Regulations give effect to United Nations Security Council Resolution No. 1572 (2004) (Resolution 1572), which, among other things, requires member States to prevent persons designated as constituting a threat to the peace and national reconciliation process in Côte d’Ivoire (designated persons) from entering into, or transiting through, their territories, except in certain specified limited circumstances. A Committee established by Resolution 1572 (the Committee) will publish a list of designated persons and update the list from time to time.  The travel restrictions are to continue until 14 December 2005, and will then be reviewed by the United Nations Security Council.  

The effect of the Regulations is to:

• impose an additional special criterion for the grant of a visa to a designated person, to the effect that the Minister must be satisfied that the Committee has determined that specified grounds exist for the person’s travel to Australia, or that there are compelling reasons for the grant of a visa to the person;

• prescribe that it is a ground on which the Minister may cancel a visa if the holder is or becomes a designated person; and

• prescribe that it is a circumstance under which the Minister must not cancel a visa if the Minister is satisfied that the Committee has determined that specified grounds exist for the person’s travel to, or continued stay in, Australia, or that there are compelling reasons for the person to continue holding the visa.

Details of the Regulations are set out in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The following document is incorporated in the Regulations by reference:

• United Nations Security Council Resolution No. 1572 (2004), available online from the UN Security Council at: www.un.org.

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.                                                                                                

No other consultations were undertaken in relation to the Regulations, as the provisions were considered not to have any relevant implications for any other external agencies or other bodies. 

The Regulations will commence on 1 July 2005.  This commencement date is a consequence of various systems requirements necessary to allow the implementation of the Regulations.

0502944A-050406Z

ATTACHMENT

Details of the Migration (Côte d’Ivoire – United Nations Security Council Resolutions) Regulations 2005

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration (Côte d’Ivoire - United Nations Security Council Resolutions) Regulations 2005.

Regulation 2 – Commencement

This regulation provides that these Regulations commence on 1 July 2005.  This commencement date is a consequence of various systems requirements necessary to allow the implementation of the Regulations.

Regulation 3 – Definitions

This regulation defines the following terms for the purposes of these Regulations:

Act is defined to mean the Migration Act 1958;

Committee is defined as meaning the Committee established under paragraph 14 of Resolution 1572;

designated person is defined as meaning a person whose name appears in a Gazette Notice for regulation 5; and

Resolution 1572 is defined to mean United Nations Security Council Resolution No.1572 (2004).

Regulation 4 – Application

This regulation provides that these Regulations apply in addition to, and despite any contrary provision in, any other Regulations under the Act. 

The effect of this regulation is that if an applicant for a visa is a designated person, the applicant must satisfy the special criterion set out in regulation 6 of these Regulations, in addition to the criteria prescribed in the Migration Regulations 1994 for the relevant class of visa.  If the special criterion is not satisfied, the applicant must not be granted a visa irrespective of whether the other prescribed criteria are met.  Similarly, where a visa holder is a designated person, the grounds and circumstances prescribed under regulation 7 of these Regulations in relation to the cancellation of a visa under section 116 of the Act apply in addition to any other grounds and circumstances prescribed in the Migration Regulations 1994.   

Regulation 5 –Designated persons

This regulation provides that the Minister may specify in a Gazette Notice the name of a person whose name appears in a list of individuals published by the Committee, and who is subject to the travel sanctions imposed by Resolution 1572 or any other United Nations Security Council Resolution concerning Côte d’Ivoire.  In accordance with the definition in regulation 3 of these Regulations, a person whose name appears in a Gazette Notice made under this regulation comes within the term ‘designated person’.

Regulation 6 – Special criterion for grant of visas

This regulation prescribes a special criterion to be satisfied at the time of decision for the grant of a visa of any class to an applicant who is a designated person.

Subregulation 6(1) provides that the special criterion applies to all applications for visas made, but not finally determined, before 1 July 2005, and all applications made on or after    1 July 2005. 

Subregulation 6(2) sets out the special criterion to be satisfied at the time of decision by an applicant who is a designated person. The special criterion requires the Minister to be satisfied that:

• the Committee has determined that the designated person’s travel to Australia is either justified on the grounds of humanitarian need, including religious obligation, or would further the objectives of the United Nations Security Council Resolutions for peace and national reconciliation in Côte d’Ivoire and stability in the region; or
• there are compelling reasons for the grant of the visa.

The effect of this criterion is that unless the Minister is satisfied that one or more of these circumstances exist, the grant of a visa to a designated person must be refused.

Regulation 7 – Prescribed ground for cancelling visas (Act s 116)

This regulation prescribes a new ground for the purposes of paragraph 116(1)(g), on which the Minister has the discretion to cancel a visa under section 116 of the Act. It also prescribes circumstances in which the Minister must not cancel a visa for the purposes of subsection 116(2).

Subregulation 7(1) provides that regulation 7 applies to any visa granted on, before or after    1 July 2005.

Subregulation 7(2) provides that for the purposes of paragraph 116(1)(g) of the Act, it is a prescribed ground for cancellation of a visa under section 116 that the holder of the visa is, or becomes, a designated person.  However, this does not apply to a visa granted on the basis of satisfying the special criterion set out in subregulation 6(2) of these Regulations (see above). 

Subregulation 7(3) provides that for the purposes of subsection 116(2) of the Act, the Minister must not cancel a visa on the ground prescribed in subregulation 7(2) of these Regulations if:

• the Committee has determined that the designated person’s travel to, or continued stay in, Australia is either justified on the grounds of humanitarian need, including religious obligation, or would further the objectives of the United Nations Security Council Resolutions for peace and national reconciliation in Côte d’Ivoire and stability in the region; or
•   there are compelling reasons for the designated person to continue to hold the visa.