Migration Reform (Transitional Provisions) Regulations (Amendment) 1996 No. 11
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 11
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 Governor-General 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.
The purpose of the Regulations is to amend the Migration Reform (Transitional Provisions) Regulations to:
* provide applicants for a Class 816 (special (permanent) entry permit (after entry)) under the Migration (1993) Regulations, whose applications are not finally determined at the commencement of the proposed Regulations, with the further opportunity of demonstrating English language proficiency by removing the requirement that the English language tests must have been successfully undertaken no later than 31 October 1995; and
* make minor technical amendments to regulation 19A (Special Circumstance visa).
Regulation 3 of the Regulations is taken to have commenced on 1 November 1995. The effect of the regulation 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. The remainder of the Regulations commence on gazettal.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides that regulation 3 of these Regulations is taken to have commenced on 1 November 1995. The effect of the regulation 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 7 - Amendment
This regulation provides for the Migration Reform (Transitional Provisions) Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 19A (Special Circumstance visa)
Subregulation 3.1 omits paragraphs 19A(3)(e) and (f) of the Migration Reform (Transitional Provisions) Regulations and substitutes a new paragraph (c). The new paragraph repeats the provisions of the omitted paragraphs with a technical amendment.
Subregulation 3.2 makes a technical amendment to subregulation 19A(S) as a consequence of the amendment made by subregulation 3.1 of these Regulations.
Subregulation 3.3 makes a technical amendment to subregulation 19A(6) as a consequence of the amendment made by subregulation 3.1 of these Regulations.
Subregulation 3.4 makes a technical amendment to paragraph 19A(6)(b) by omitting "on or after 20 August 1986" and substituting "before 20 August 1986".
Subregulation 3.5 makes a technical amendment to subparagraphs 19A(7)(b)(i) and (ii) as a consequence of the amendment made by subregulation 3.1 of these Regulations.
Regulation 4 - New regulation 23I
Paragraph 816.732(1)(b) and subclause 816.732(3) of the Migration (1993) Regulations enabled principal applicants for a Class 816 (special (permanent) entry permit (after entry)) to demonstrate English language proficiency by successfully undertaking, no later than 31 October 1995, at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister. This regulation provides applicants for a Class 816 (special (permanent) entry permit (after entry)) under the Migration (1993) Regulations, whose applications are not finally determined at the commencement of these Regulations, with the further opportunity of demonstrating English language proficiency by removing the requirement that the English language tests must have been successfully undertaken no later than 31 October 1995.
Overview
The Migration Reform (Transitional Provisions) Regulations (Amendment) 1996 No. 11, issued under the authority of the Minister for Immigration and Ethnic Affairs, aims to address transitional issues arising from the implementation of the Migration Reform Act 1992. These regulations amend the existing Migration Reform (Transitional Provisions) Regulations to provide applicants for a Class 816 (special (permanent) entry permit (after entry)) with a further opportunity to demonstrate English language proficiency, removing the previous requirement that English language tests must have been undertaken by 31 October 1995. Additionally, the regulations make minor technical amendments to regulation 19A (Special Circumstance visa). The policy objective of these amendments is to facilitate smoother transitions and provide flexibility in the application process for certain migrants, ensuring that the requirements do not unfairly disadvantage those affected by the timing of the legislative changes.
Scope and Application
The Migration Reform (Transitional Provisions) Regulations (Amendment) 1996 No. 11 apply to individuals who are in the process of applying for a Class 816 (special (permanent) entry permit (after entry)) under the Migration (1993) Regulations and whose applications have not been finally determined at the commencement of the proposed Regulations. The Regulations aim to provide these applicants with an extended opportunity to demonstrate English language proficiency by removing the requirement that English language tests must have been successfully undertaken no later than 31 October 1995. Additionally, the Regulations make minor technical amendments to regulation 19A (Special Circumstance visa). These Regulations are made under the authority of the Minister for Immigration and Ethnic Affairs and are intended to operate within the framework of both the Migration Act 1958 and the Migration Reform Act 1992. The Regulations do not specify any exclusions or exemptions and are applicable on a national level within Australia.
Key Provisions
The key provisions of the Migration Reform (Transitional Provisions) Regulations (Amendment) 1996 No. 11 are found in regulations 3 and 4, which amend the Migration Reform (Transitional Provisions) Regulations (referenced in parentheses as Regulations 3.1 to 3.5 and Regulation 4). Regulation 3 amends subregulations 19A(3)(e) and (f) of the Migration Reform (Transitional Provisions) Regulations, replacing them with a new subregulation 19A(3)(c) and making related technical amendments to subregulations 19A(5), 19A(6), and 19A(7). Regulation 4 introduces a new regulation 23I, which removes the requirement for applicants for a Class 816 (special (permanent) entry permit (after entry)) to have successfully undertaken English language tests by 31 October 1995, if their applications are not finally determined at the commencement of these Regulations.
The obligations and requirements imposed by these Regulations primarily concern applicants for a Class 816 (special (permanent) entry permit (after entry)) under the Migration (1993) Regulations. The Regulations remove the previously stringent requirement that English language tests must have been successfully undertaken by 31 October 1995, providing affected applicants with an additional opportunity to demonstrate their English language proficiency. This amendment applies to applicants whose applications are not finally determined at the commencement of these Regulations. Additionally, the technical amendments made to subregulations 19A(3) to 19A(7) aim to ensure the coherence and effectiveness of the Regulations in their application to Special Circumstance visas.
The Regulations do not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, failure to comply with the provisions of the Migration Act 1958 or the Migration Reform Act 1992, including the Regulations, could potentially result in legal actions under the respective Acts. The penalties for breaches of the Migration Act 1958 can vary widely depending on the specific breach, ranging from fines to imprisonment. For instance, under section 231 of the Act, a person who contravenes a visa condition may be liable to a fine of up to 60 penalty units or imprisonment for up to two years, or both, for a first offence. The maximum penalties for breaches of the Migration Reform Act 1992 are similarly varied and depend on the nature and severity of the breach.