Migration Reform (Transitional Provisions) Regulations (Amendment) 1995 No. 40
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 40
Issued by the Authority of the Minister for Immigration and Ethnic Affairs
Migration Act 1958
Migration Reform Act 1992
Migration Reform (Transitional Provisions) Regulations (Amendment)
Section 504 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 42 of the Migration Reform Act 1992 (the Reform Act) provides that the GovernorGeneral may make regulations prescribing matters required or permitted by the Reform Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Reform Act.
In addition, regulations may be made pursuant to the following powers:
- subsection 40(7) of the Reform Act provides that the regulations may provide that, from 1 September 1994, applications made after a specified date, or other specified applications, for visas or entry permits in a specified old Act class are to be taken to be applications for visas in a specified amended Act class.
The purpose of the Regulations is to amend the Migration Reform (Transitional Provisions) Regulations to allow former holders of Extended Eligibility Temporary Entry Permits (EETEP) who were outside Australia on 1 September 1994 to apply outside Australia for a substantive visa corresponding to the entry permit they had held.
Details of the proposed Regulations are as follows:
Regulation 1 - Commencement
This regulation provides that regulation 3 is taken to have commenced on 1 September 1994. The effect of the regulations is beneficial to the persons concerned and will not be prejudicial to any person. Retrospectivity will not, therefore, contravene subsection 48(2) of the Acts Interpretation Act 1901.
Regulation 2 - Amendment
This regulation provides for the Migration Reform (Transitional Provisions) Regulations to be amended as set out in these Regulations.
Regulation 1- Regulation 38 (Special provision for grant outside Australia of visas to form holders of temporary entry permits)
This regulation omits paragraph 4(b).
The unintentional effect of paragraph 4(b) was that former EETEP holders who did not obtain an Extended Eligibility Temporary Entry Visa (EETEV) before departing Australia were unable to obtain a travel facility to return to Australia, even though this facility was available to them before 1 September 1994. This regulation corrects that unintentional effect.
Overview
The Migration Reform (Transitional Provisions) Regulations (Amendment) 1995 No. 40 were enacted to address an oversight in the transitional provisions following the implementation of the Migration Reform Act 1992. This legislation amends the Migration Reform (Transitional Provisions) Regulations to ensure that former holders of Extended Eligibility Temporary Entry Permits (EETEP) who were outside Australia on 1 September 1994 could apply for a substantive visa outside Australia corresponding to the entry permit they had held. This amendment was necessary to correct an unintentional effect where former EETEP holders who did not obtain an Extended Eligibility Temporary Entry Visa (EETEV) before departing Australia were unable to obtain a travel facility to return to Australia, a facility that was available to them prior to 1 September 1994. The regulations were issued by the Minister for Immigration and Ethnic Affairs under the authority of the Migration Act 1958 and the Migration Reform Act 1992, aiming to provide clarity and ensure the smooth transition of visa holders affected by the reform.
Scope and Application
The Migration Reform (Transitional Provisions) Regulations (Amendment) 1995 No. 40 apply to individuals who were former holders of Extended Eligibility Temporary Entry Permits (EETEP) and were outside Australia on 1 September 1994. The amendment allows these individuals to apply for a substantive visa corresponding to the entry permit they held, outside Australia. The regulation is designed to rectify an unintentional effect caused by a previous regulation that prevented these individuals from obtaining a travel facility to return to Australia, a facility that was previously available to them. This amendment ensures that the provisions of the Migration Reform Act 1992 and the Migration Act 1958 are applied correctly and fairly to those affected by the transitional provisions. The scope of the regulation is limited to the correction of this specific issue and does not broadly extend to other classes of visa applicants or entry permit holders. The regulation operates within the jurisdictional reach of the Commonwealth of Australia, as it amends regulations made under the authority of the Migration Act 1958 and the Migration Reform Act 1992.
Key Provisions
The Migration Reform (Transitional Provisions) Regulations (Amendment) 1995 No. 40 primarily focuses on amending the transitional provisions for the migration reforms that took effect from 1 September 1994. Section 504 of the Migration Act 1958 allows for the creation of regulations to implement the Act, while Section 42 of the Migration Reform Act 1992 provides similar authority for regulations implementing the Reform Act. The regulations aim to correct an oversight regarding the eligibility of former holders of Extended Eligibility Temporary Entry Permits (EETEP) who were outside Australia on 1 September 1994 to apply for a substantive visa corresponding to their entry permit.
These regulations impose specific obligations on the parties involved. Firstly, the amendments seek to rectify an unintended consequence of Regulation 38(4)(b) which inadvertently restricted the ability of former EETEP holders to obtain a travel facility to return to Australia if they did not secure an Extended Eligibility Temporary Entry Visa (EETEV) before leaving the country. By omitting this paragraph, the regulations ensure that former EETEP holders are not disadvantaged and can apply for a substantive visa outside Australia. This correction aims to provide clarity and fairness in the application process for those affected by the transitional provisions.
There are no explicit offences, penalties, or consequences for breach outlined in the text of the Explanatory Statement for these regulations. However, it is implicit that adherence to these provisions is necessary to ensure the correct application of the transitional measures. Non-compliance with these regulations could potentially lead to procedural errors in the visa application process for affected individuals, which may result in delays or denials of their visa applications. It is important for all parties to follow the prescribed procedures to avoid any adverse outcomes.
In conclusion, the Migration Reform (Transitional Provisions) Regulations (Amendment) 1995 No. 40 addresses a specific issue affecting former EETEP holders by ensuring they can apply for a substantive visa outside Australia. The regulations amend the transitional provisions to correct an oversight and impose obligations to facilitate the visa application process for those concerned. While no specific penalties are mentioned, adherence to these regulations is crucial to avoid complications in the visa application process.