Migration (Haiti-United Nations Security Council Resolutions) Regulations

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Migration (Haiti - United Nations Security Council Resolutions) Regulations 1994 No. 267
 

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 267

Issued by the Authority of the Minister for Immigration and Ethnic Affairs

Subject - Migration Act 1958

Migration (Haiti - United Nations Security Council Resolutions) Regulations

Amendments to the Migration Act 1958 (the Act) commence on 1 September 1994. These amendments include amendments which renumber the provisions of the Act. The Regulations are made to commence on 1 September 1994 to implement changes necessary as a result of the amendments to the Act. All references in this Explanatory Statement are to the renumbered provisions as they will exist on 1 September 1994.

The Act provides the regulation making powers set out below which enable these regulations to be made. Where necessary subsection 4 (1) of the Acts Interpretation Act 1901 is relied upon. That subsection provides that where an amending Act amends a principal Act in such a way that the principal Act will confer power to make regulations then the power may be exercised before the amendments come into operation as if they had come into operation.

Section 504 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted by the Act to be prescribed, for carrying out or giving effect to the Act. In addition, subsection 31(3) of the Act enables regulations to be made to prescribe the criteria for a visa and paragraph 116(1)(g) of the Act enables regulations to be made prescribing grounds for the cancellation of visas.

The Regulations repeal Statutory Rules 1994 No. 151 - the Migration (Haiti - United Nations Security Council Resolutions) Regulations - and remake those Regulations. The Regulations operate in the same way as the repealed Regulations.

The purpose of the Regulations is to limit the circumstances in which the Minister may grant a visa to persons connected with the Haitian coup d'etat of 1991, the Haitian military and police forces and the present administration of Haiti, and their immediate families. The regulation also limits the circumstances in which a person engaging in business activities with Haiti may be granted a visa and provides for the cancellation of the visa of a person engaged in prohibited activities.

The making of the Regulations is consistent with the objectives of implementing the United Nations Security Council Resolution No. 917 of 5 May 1994.

Details of the Regulations are:

Regulation 1 - Citation

This regulation provides that these Regulations may be cited as the Migration (Haiti - United Nations Security Council Resolutions) Regulations.

Regulation 2 - Commencement

This regulation provides that the Regulations commence on 1 September 1994.

Regulation 3 - Interpretation

This regulation defines the meaning of the terms "Act" and "alien" for the purposes of the Regulations.

Regulation 4 - Application

This regulation provides for the Regulations to operate in addition to, and despite any provision to the contrary in, any other Regulations made under the Act.

Regulation 5 - Special criterion for grant of visas

This regulation prescribes special criteria for the grant of visas, to be satisfied at the time of decision. The applicant is required to satisfy either the requirements in subregulation (2) or (3) and the requirements in subregulation (4).

Subregulation (2) provides that the applicant meets the requirements of the subregulation if the person is not a person specified. The persons specified are persons connected with the Haitian coup d'etat of 1991, the Haitian police and military forces or the present administration of Haiti, and their immediate families.

Subregulation (3) is an alternative requirement to that set out in subregulation (2). A person meets the requirements of the subregulation if the Minister is satisfied that the granting of the visa will not infringe Australia's obligations under international law.

The requirements set out in subregulation (4) are an additional requirement that must be satisfied. The requirements in this subregulation relate to the business connections the applicant for the visa has with persons or organisations in Haiti. The Minister must be satisfied that the person will not engage, or would, if permitted to enter Australia, be unlikely to engage, within Australia in a prohibited activity.

Subregulation (5) sets out the circumstances in which a business activity is not a prohibited activity.

Subregulation (6) provides for the Minister to give permission to engage in an activity prohibited by subregulation (4) if the Minister is satisfied that permitting the activity will not infringe Australia's obligations under international law.

Regulation 6 - Cancellation of visa

This regulation prescribes as a ground for cancellation of a visa under section 116(1)(g) of the Act that the Minister is satisfied that the alien has engaged, within Australia, in the business activities prohibited by subregulation 5 (4).

Regulation 7 - Repeal

This regulation repeals the previous Regulations, Statutory Rules 1994 No. 151.

 

Overview

The Migration (Haiti - United Nations Security Council Resolutions) Regulations 1994 No. 267 were enacted to address the need for Australia to implement measures in response to the United Nations Security Council Resolution No. 917 of 5 May 1994, which dealt with the situation in Haiti following the coup d'etat of 1991. The Regulations were made under the authority of the Minister for Immigration and Ethnic Affairs and commenced on 1 September 1994, as part of amendments to the Migration Act 1958. The primary objective of these Regulations is to restrict the granting of visas to individuals connected to the Haitian coup d'etat, the Haitian military and police forces, the present administration of Haiti, and their immediate families, in alignment with international obligations. Additionally, the Regulations limit the circumstances under which a person engaging in business activities with Haiti may be granted a visa and provide for the cancellation of visas for those engaged in prohibited activities. These measures ensure that Australia's immigration policies reflect its commitment to international resolutions and obligations.

Scope and Application

The Migration (Haiti - United Nations Security Council Resolutions) Regulations 1994 No. 267, made under the Migration Act 1958, are designed to implement Australia's obligations arising from United Nations Security Council Resolution No. 917 of 5 May 1994. These Regulations limit the circumstances in which the Minister may grant visas to individuals connected with the Haitian coup d'etat of 1991, the Haitian military and police forces, and the current administration of Haiti, as well as their immediate family members. Additionally, they restrict the issuance of visas to individuals engaging in business activities with Haiti and provide grounds for the cancellation of visas for those involved in prohibited activities. The Regulations operate in conjunction with the Act and other regulations, and they repeal and remake previous regulations (Statutory Rules 1994 No. 151). The Regulations apply to individuals who are not specified in the Regulations, i.e., not connected with the aforementioned groups, and also require the Minister to be satisfied that granting a visa will not infringe Australia's international obligations, nor will the visa holder engage in prohibited activities within Australia. The Regulations are applicable nationally across Australia and are consistent with international law obligations.

Key Provisions

The Migration (Haiti - United Nations Security Council Resolutions) Regulations 1994 No. 267 (the Regulations) are crafted to implement amendments to the Migration Act 1958 (the Act), which came into effect on 1 September 1994. These Regulations serve to restrict the circumstances under which visas may be granted to individuals associated with the Haitian coup d'état of 1991, the Haitian military and police forces, and the present administration of Haiti, along with their immediate families (Regulation 5). Additionally, they limit the conditions under which a person involved in business activities with Haiti can be granted a visa (Regulation 5). The Regulations also establish grounds for the cancellation of a visa if the Minister is satisfied that the visa holder has engaged in prohibited business activities within Australia (Regulation 6). The Regulations, therefore, reflect the intent to enforce Australia's adherence to international obligations as set out in United Nations Security Council Resolution No. 917 of 5 May 1994. The Regulations impose specific obligations on the Minister for Immigration and Ethnic Affairs, who must ensure that visas are granted only under the criteria outlined in Regulation 5. The Minister must verify that the visa applicant is not connected with the specified Haitian entities and that the granting of a visa will not infringe Australia's obligations under international law. Furthermore, the Minister must be satisfied that the visa applicant will not engage in prohibited business activities within Australia (Regulation 5(4)). In cases where an applicant wishes to engage in activities that may be considered prohibited, the Minister may grant permission if it is determined that such permission will not violate Australia's international obligations (Regulation 5(6)). Additionally, the Regulations require the Minister to cancel a visa if it is determined that the visa holder has engaged in prohibited business activities within Australia (Regulation 6). Under the Regulations, any failure to comply with the prescribed criteria for the grant of a visa or the engagement in prohibited activities may result in the cancellation of a visa (Regulation 6). Such cancellation is a significant consequence, as it may lead to the visa holder being subject to removal from Australia. There are no specific penalties outlined in the Regulations for the breach of the provisions, but the enforcement of visa cancellation is a strong deterrent. The seriousness of the consequences is underscored by the fact that these Regulations are aligned with Australia's international commitments as per the United Nations Security Council Resolution No. 917 of 5 May 1994.

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