Migration Laws Amendment Act (No. 2) 1992

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Migration Laws Amendment Act (No. 2) 1992

No. 176 of 1992

An Act to amend the Immigration (Education) Act 1971 and the Migration Act 1958, and for related purposes

[Assented to 16 December 1992]

The Parliament of Australia enacts:

 

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Migration Laws Amendment Act (No. 2) 1992.

Commencement

2.(1) Subject to this section, this Act commences, or is taken to have commenced, on 1 January 1993.

(2) Sections 4, 6 and 7 and Part 3 of this Act commence on 1 March 1993.

37911 Cat. No. 93 3368 3

(3) Parts 4 and 5 of this Act commence on the day on which this Act receives the Royal Assent.

 

PART 2—AMENDMENT OF THE IMMIGRATION (EDUCATION) ACT 1971

Principal Act

3. In this Part, “Principal Act” means the Immigration (Education) Act 19711.

Interpretation

4. Section 3 of the Principal Act is amended by inserting the following definitions:

“ ‘approved English course’ means an English course provided in accordance with section 4 or 4B;

‘Charge Act’ means the Immigration (Education) Charge Act 1992;

‘exempt entry permit’ has the same meaning as in the Charge Act;

‘exempt visa’ has the same meaning as in the Charge Act;

‘stay visa’ has the same meaning as in the Charge Act;”.

5. After section 4 of the Principal Act the following section is inserted:

Fees for English courses

“4A.(1) The regulations may provide for the charging and recovery of fees, not exceeding $250 per year per student, in respect of English courses provided in accordance with section 4.

“(2) Regulations for the purposes of subsection (1) must:

(a) exempt from any fees prescribed under that subsection persons who, at the time of enrolment in the English course, are:

(i) the holders of a health care card; or

(ii) registered job seekers; and

(b) provide that fees are payable on enrolment in the English course.

“(3) The regulations may do one or both of the following:

(a)     prescribe different fees in relation to different classes of courses;

(b)     provide for the refund, reduction or waiving of fees in cases identified in the regulations.

“(4) In this section:

‘health care card’ means a card prescribed for the purposes of this section that is issued by the government of the Commonwealth, of a State or of a Territory;

‘registered job seeker’ means a person prescribed for the purposes of this section who is seeking work.”.

6. After section 4A of the Principal Act the following sections are inserted:

English courses

“4B. The Minister is to arrange for English courses to be provided for persons who:

(a)     have made an application for a stay visa that is covered by paragraph 5(a) of the Charge Act; and

(b)     were at least 18 at the time the stay visa came into force; and

(c)     do not have functional English; and

(d)     have paid, or are exempt from paying, the English Education Charge under the Charge Act.

Obligation to provide English tuition

“4C. Subject to section 4D, the Commonwealth is obliged to provide, or arrange the provision of, 510 hours of tuition in an approved English course to a person if the person:

(a)     has made an application for a stay visa that is covered by paragraph 5(a) of the Charge Act; and

(b)     was at least 18 at the time the stay visa came into force; and

(c)     does not have functional English; and

(d)     has paid, or is exempt from paying, the English Education Charge under the Charge Act.

Cessation of obligation to provide English tuition

“4D.(1) Subject to this section, the obligation of the Commonwealth to a person under section 4C ceases:

(a)     if the provider of an approved English course determines, in writing, in accordance with procedures approved in writing by the Secretary, that the person has functional English; or

(b)     if the person fails to register with the provider of an approved English course within the period of 3 months starting on the visa commencement date; or

(c)     if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date; or

(d)     at the end of the period of 36 months starting on the visa commencement date.

“(2) If:

(a)     the obligation to a person would, under subsection (1), or under this subsection, cease at a particular date; and

(b)     the Secretary is satisfied that it would be unreasonable for the obligation to so cease;

the Secretary may, in writing, determine that the obligation is not to cease, or is to cease only at a later date.

“(3) In determining whether it is unreasonable for an obligation to cease, the Secretary may only have regard to:

(a)     the prevention of the person from undertaking the whole or a part of an approved English course by the action or inaction of a person who provides approved English courses; and

(b)     any other matters that are prescribed.

“(4) In this section:

‘relevant visa or entry permit’ means the visa or entry permit in respect of the application for which English Education Charge was imposed;

‘visa commencement date’ for a person means:

(a)     if the person was in Australia on the day on which the relevant visa or entry permit came into force—that day; or

(b)     if the person was not in Australia on the day on which the relevant visa or entry permit came into force—the day that the person first enters Australia after that day.

Refunds

“4E. A person is entitled to a refund of English Education Charge paid by the person under the Charge Act on an application for a stay visa if the obligation of the Commonwealth to the person under section 4C has not ceased and:

(a)     the person withdraws the application before the stay visa is granted; or

(b)     the stay visa is cancelled or otherwise ceases to be in force before the person commences an approved English course and, at the time the person seeks the refund, the person has not applied for or been granted another stay visa (other than an exempt visa or exempt entry permit); or

(c)     the person dies before the person commences an approved English course.

Effect of refund

“4F. For the purposes of this Act, if a person is entitled to a refund of an amount of English Education Charge, the person is taken to have never paid the charge.”.

7. After section 10 of the Principal Act, the following section is inserted:

Delegation

“10A. The Secretary may, by signed instrument, delegate any or all of his or her powers under this Act to an officer of the Department.”.

PART 3— AMENDMENTS OF THE MIGRATION ACT 1958 RELATING TO MIGRATION EDUCATION

Principal Act

8. In this Part, “Principal Act” means the Migration Act 19582.

Interpretation

9. Section 4 of the Principal Act is amended by inserting after subsection (1) the following subsection:

“(1A) For the purposes of this Act, a person has functional English at a particular time if:

(a) the person passes a test that:

(i) is approved in writing by the Minister for the purposes of this subsection; and

(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or

(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.”.

Grant or refusal of visas

10. Section 24 of the Principal Act is amended:

(a) by inserting after paragraph (3)(aa) the following paragraph:

“(ab) if:

(i) paragraphs 5(a) and (c) of the Immigration (Education) Charge Act 1992 apply to the person in relation to the application; and

(ii) the person is at least 18; and

(iii) the person does not have functional English;

the Minister must include in the notice a statement to the effect that a visa cannot be granted unless the English Education Charge payable under that Act has been paid; and”;

(b)    by inserting in subsection (3B) “the Immigration (Education) Charge Act 1992 or” after “under”;

(c)     by omitting paragraph (6)(a) and substituting the following paragraphs:

“(aa) if:

(i) paragraphs 5(a) and (c) of the Immigration (Education) Charge Act 1992 apply to the person in relation to the application; and

(ii) the person is at least 18; and

(iii) the person does not have functional English;

the Minister must include in the notice a statement to the effect that a visa cannot be granted unless the English

Education Charge payable under that Act has been paid; and;

(a) the Minister must, subject to subsection (3B) and to sections 28 and 28B, grant the visa; and”.

Grant or refusal of entry permits

11. Section 34 of the Principal Act is amended:

(a) by inserting after paragraph. (3)(a) the following paragraph:

“(aa) if:

(i) paragraphs 5(a) and (c) of the Immigration (Education) Charge Act 1992 apply to the person in relation to the application; and

(ii) the person is at least 18; and

(iii) the person does not have functional English;

the Minister must include in the notice a statement to the effect that an entry permit cannot be granted unless the English Education Charge payable under that Act has been paid; and”;

(b) by inserting in subsection (3B) “the Immigration (Education) Charge Act 1992 or” after “under”.

 

PART 4—OTHER AMENDMENTS OF THE MIGRATION ACT 1958

Principal Act

12. In this Part, “Principal Act” means the Migration Act 19583.

Consideration of applications for refugee status

13. Section 22AD of the Principal Act is amended by omitting paragraph (2)(c) and substituting the following paragraph:

“(c) an entry permit, or entry visa:

(i) granted to a person because of being a national of the People’s Republic of China who was in Australia on or before 20 June 1989; or

(ii) granted to a person because of being a spouse or dependent child of a person described in subparagraph (i).”.

14. After section 89A of the Principal Act the following section is inserted:

Persons to identify themselves

“89B.(1) In this section:

‘overseas vessel’ means:

(a) a vessel on which persons travel from outside Australia to a port and then to another port or ports; or

(b) a vessel on which persons travel from a port to another port or ports and then to a place outside Australia.

“(2) A person, whether a citizen or a non-citizen, who travels, or appears to intend to travel, on an overseas vessel from a port to another port may be required by an officer at either port or by officers at both ports:

(a)     to show the officer prescribed evidence of the person’s identity; and

(b)     to give the officer any information required to be given by this Act or the regulations.”.

15.(1) After section 181 of the Principal Act the following section is inserted:

Regulations about visa criteria

“182. To avoid doubt, regulations for the purpose of prescribing a criterion for visas, or entry permits, in a class may provide that the Minister, when required to decide whether an applicant for a visa, or entry permit, in the class satisfies the criterion:

(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:

(i) give an opinion on a specified matter; or

(ii) make an assessment of a specified matter; or

(iii) make a finding about a specified matter; or

(iv) make a decision about a specified matter; and

(b) is:

(i) to have regard to that opinion, assessment, finding or decision in; or

(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;

deciding whether the applicant satisfies the criterion.”.

(2) Regulations purported to be made before the commencement of this section that could have been made if the section inserted in the Principal Act by subsection (1) had been in force are taken to have been validly made.

 

PART 5—OPERATION OF THE MIGRATION AMENDMENT ACT 1983

Absorbees never prohibited non-citizens

16. Subsection 8(2) of the Migration Amendment Act 1983 does not apply, and never has applied, to a person who:

(a)     on the commencement of that Act, was in Australia; and

(b)    before that commencement, had ceased to be an immigrant; and

(c)     since that commencement, has not left Australia.

NOTES

  1. No. 3, 1971, as amended. For previous amendments, see Nos. 110 and 216, 1973; No. 37, 1976; No. 76, 1986; and No. 35, 1991.
  2. No. 62, 1958, as amended. For previous amendments, see No. 87, 1964; No. 10, 1966; Nos. 16 and 216, 1973; Nos. 37 and 91, 1976; Nos. 117 and 118, 1979; Nos. 89 and 175, 1980; No. 61, 1981; No. 51, 1982; Nos. 73 and 112, 1983; Nos. 22, 72 and 123, 1984; Nos. 71, 102 and 168, 1986; Nos. 86, 104, 133 and 141, 1987; Nos. 5, 38, 49 and 151, 1988; Nos. 59 and 61, 1989; No. 37, 1990; Nos. 70, 86, 196 and 198, 1991; and Nos. 24, 84 and 85, 1992.
  3. No. 62, 1958, as amended. For previous amendments, see No. 87, 1964; No. 10, 1966; Nos. 16 and 216, 1973; Nos. 37 and 91, 1976; Nos. 117 and 118, 1979; Nos. 89 and 175, 1980; No. 61, 1981; No. 51, 1982; Nos. 73 and 112, 1983; Nos. 22, 72 and 123, 1984; Nos. 71, 102 and 168, 1986; Nos. 86, 104, 133 and 141, 1987; Nos. 5, 38, 49 and 151, 1988; Nos. 59 and 61, 1989; No. 37, 1990; Nos. 70, 86, 196 and 198, 1991; and Nos. 24, 84 and 85, 1992.

[Minister’s second reading speech made in—

House of Representatives on 4 November 1992

Senate on 24 November 1992]

Overview

The Migration Laws Amendment Act (No. 2) 1992, enacted by the Parliament of Australia, was introduced to address issues concerning the integration of immigrants into Australian society by mandating English language education for certain visa applicants. The Act amends the Immigration (Education) Act 1971 and the Migration Act 1958 to establish obligations for the Commonwealth to provide English tuition and to impose English education charges on applicants for specified visas. It also introduces provisions for refunds of these charges under certain conditions. The policy objective is to ensure that immigrants acquire functional English skills, thereby facilitating their integration and participation in Australian society. This is achieved by making English proficiency a condition for the grant of certain visas, and by imposing financial responsibilities on applicants who lack such proficiency.

Scope and Application

The Migration Laws Amendment Act (No. 2) 1992 applies to the Immigration (Education) Act 1971 and the Migration Act 1958, focusing on the provision of English language courses for certain visa applicants and the amendment of visa and entry permit criteria, among other provisions. It targets individuals who are applicants for specific stay visas and are aged 18 or over but do not have functional English, as well as entities providing English courses. The Act is a Commonwealth law, thus its application and enforcement are within the jurisdictional reach of the Australian federal government. It does not apply to individuals who already have functional English or those who are under 18 years of age at the time their visa comes into force. Additionally, the Act provides for certain exemptions from fees for English courses for individuals holding health care cards or registered job seekers. The Act's application can be further defined and expanded through subordinate legislation, which may detail specific fees, criteria for functional English, and other operational aspects not explicitly covered in the principal Act.

Key Provisions

The Migration Laws Amendment Act (No. 2) 1992 introduces several key provisions, primarily focused on the provision of English courses for certain visa applicants and the amendment of the Immigration (Education) Act 1971 and the Migration Act 1958. Under section 4A, the Minister is mandated to arrange for English courses for persons who have applied for a stay visa, were at least 18 at the time the visa came into force, do not have functional English, and have paid or are exempt from paying the English Education Charge. Section 4C further stipulates that the Commonwealth is obliged to provide or arrange the provision of 510 hours of tuition in an approved English course for such applicants, subject to certain conditions. This obligation ceases if the person acquires functional English, fails to register or commence the course within specified periods, or after 36 months from the visa commencement date, though the Secretary may extend this period if deemed unreasonable (section 4D). The Act imposes specific obligations on the parties it governs, primarily the Commonwealth and the Minister. The Commonwealth is required to provide or arrange for English tuition as outlined in section 4C. The Minister must include a statement in notices to applicants if certain conditions under the Immigration (Education) Charge Act 1992 apply, such as the requirement to pay the English Education Charge for visa approval (sections 10 and 11). Additionally, the Minister can delegate powers under this Act to an officer of the Department (section 10A). Breach of the provisions in this Act may lead to civil or administrative consequences. For example, failure to comply with the requirements for English courses and tuition could result in the cessation of the Commonwealth's obligation to provide such courses. Furthermore, applicants who do not satisfy the English proficiency requirement may be refused a visa or entry permit unless they pay the English Education Charge. While the Act does not explicitly state criminal or civil penalties for non-compliance, the consequences of not meeting the requirements could include the inability to obtain a visa or entry permit, which in turn may affect the applicant's legal status in Australia.

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