Migration Reform (Transitional Provisions) Regulations (Amendment)

Administered by Department of Home Affairs

Legislation au F1996B02057 Regulations Not in force Legislative Instrument

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Migration Reform (Transitional Provisions) Regulations (Amendment) 1994 No. 281

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 281

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

Subject - Migration Reform Act 1992

Migration Reform (Transitional Provisions) Regulations (Amendment)

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.

In addition, regulations may be made pursuant to the following powers:

-       subsection 40(2) of the Reform Act provides that the regulations may provide that a specified provision of the Migration Act 1958 as in force immediately before 1 September 1994 ("the old Act") repealed or amended by the Reform Act is to continue to apply to specified persons, in specified circumstances, or in relation to visas in a specified class of the Migration Act 1958 as in force on and after 1 September 1994 ("the amended Act");

-       subsection 40(4) of the Reform Act provides that regulations made under subsection 40(2) may provide that a specified provision is to apply or not apply:

•       to a specified extent; or

•       with specified modifications (not being the modification of a penalty); or

•       as if a specified status or specified situation were another specified status or specified situation; or

•       as if a person who had a specified status, specified visa or prescribed permit had another specified status, specified visa or prescribed permit;

-       subsection 40(6) of the Reform Act provides that the regulations may provide that, from 1 September 1994, specified persons are to be taken to have been granted visas in a specified amended Act class; and

-       subsection 40(8) of the Reform Act provides that the regulations may provide that applications made before a specified date or other specified applications for visas or entry permits in a specified old Act class may continue to be dealt with under the pre1 September 1994 legislation, and that the old Act class visas or entry permits consequently granted are to be taken to be visas in a specified amended Act class.

Sections 40 and 42 of the Reform Act will not commence until 1 September 1994. However, subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act that is not to come into operation immediately upon its enactment is expressed to confer power to make regulations, then, unless the contrary intention appears, that power may be exercised before the Act comes into operation as if it had come into operation.

The purpose of the Regulations is:

-       to clarify the meaning of the term "reporting condition";

-       to ensure that where a visa or entry permit applied for before 19 December 1989 is granted following reconsideration of a refusal of the application, the applicant is taken to be granted a transitional visa of the applicable class;

-       to provide for visa and entry permit applications made before 1 September 1994 and not decided on that date to benefit from more flexible provisions, to be introduced from 1 September 1994, for the Minister to waive certain public interest criteria; and

-       to enable applications for review of a decision to refuse an application made before 1 September 1994 for the grant of a visa or entry permit to be combined in cases where the primary applications were combined.

The Regulations commence on 1 September 1994.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for these Regulations to commence on 1 September 1994.

Regulation 2 - Amendment

This regulation provides for the Migration Reform (Transitional Provisions) Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 3 (Interpretation)

This regulation amends the definition of "reporting condition" in regulation 3 of the Migration Reform (Transitional Provisions) Regulations by omitting the words "an illegal entrant" and substituting the words "a non-citizen". This amendment is necessary as the term "illegal entrant" does not cover all non-citizens who may be subject to a reporting condition on commencement of the Migration Reform (Transitional Provisions) Regulations on 1 September 1994.

Regulation 4 - Regulation 21 (Visa and entry permit applications made before 19 December 1289

This regulation omits subregulation 21(1) of the Migration Reform (Transitional Provisions) Regulations and substitutes a new subregulation. The purpose of the new subregulation is to ensure that the provisions of regulation 21 apply to an application for the grant of a visa or entry permit made before 19 December 1989 and to an application for reconsideration of the refusal of such an application.

Regulation 5_ - New regulation 23A

This regulation inserts a new regulation 23A - Application of public interest criteria 4007 and 4008 in the Migration Reform (Transitional Provisions) Regulations. The effect of this amendment is to ensure that persons with outstanding applications on 1 September 1994 who are subject to public interest criterion 4007 or 4008 will have the benefit of a flexible waiver of these criteria that operates from 1 September 1994. Regard should be had to regulation 25 of the Migration Regulations (Amendment) which commences on 1 September 1994.

Regulation 6 - New Division 2A of Part 7

This regulation inserts a new Division 2A - Combined applications for review - in Part 7 of the Migration Reform (Transitional Provisions) Regulations.

The purpose of the new division is to enable the combining of two or more applications for review of decisions to refuse applications made prior to 1 September 1994 for the grant of a visa or entry permit. The review applications may only be combined where the primary applications under the Migration (1989) Regulations or the Migration (1993) Regulations were also combined. The definition of "pre-reform visa application" in new regulation 30A Interpretation - sets out the applications to which the new Division 2A applies. New regulation 30B provides for the combining of applications for internal review. New regulation 30C provides for the combining of applications for review by the Immigration Review Tribunal.

Provision for the combining of review applications in respect of applications for the grant of visas made on and after 1 September 1994 is made by regulations 4.03 and 4,12 of the Migration Regulations. The effect of the new Division 2A of the Migration Reform (Transitional Provisions) Regulations is to extend provision for combined review applications to applications in respect of visa and entry permit applications made before 1 September 1994 where the primary applications were also combined.

Overview

The Migration Reform (Transitional Provisions) Regulations (Amendment) 1994 No. 281 is an amendment to the Migration Reform (Transitional Provisions) Regulations, which were enacted as part of the Migration Reform Act 1992. The original Act sought to overhaul Australia's migration laws, creating a more structured and streamlined approach to the management of visas and entry permits. The amendment was introduced to address transitional issues arising from the implementation of the new Act on 1 September 1994, ensuring that existing visa applications and decisions are managed effectively under the new legislative framework. The regulations were issued by the Minister for Immigration and Ethnic Affairs, who was responsible for administering the relevant provisions of the Migration Reform Act 1992. The policy objective of these regulations is to provide clarity and continuity in the application of migration laws during the transition period, ensuring that applicants who had submitted their applications under the old Act are not disadvantaged by the new legislative changes. These regulations aim to clarify the meaning of certain terms, such as "reporting condition," to ensure the smooth application of transitional provisions. They also address specific scenarios, such as applications made before certain key dates, by providing detailed rules on how these applications should be handled under the amended Act. Furthermore, the regulations introduce provisions for the flexible waiver of certain public interest criteria for applicants with outstanding applications on 1 September 1994, and they allow for the combination of review applications for decisions made prior to the commencement of the amended Act. This amendment was crucial for maintaining fairness and consistency in the administration of migration laws during a period of significant legislative change.

Scope and Application

The Migration Reform (Transitional Provisions) Regulations (Amendment) 1994 No. 281 amends the Migration Reform (Transitional Provisions) Regulations to address specific transitional provisions arising from the implementation of the Migration Reform Act 1992. The Regulations apply to individuals and entities affected by the changes in migration laws, including those who have submitted visa or entry permit applications prior to 1 September 1994. They aim to ensure that transitional provisions are properly applied to these applications, taking into account the new criteria and conditions introduced by the amended Migration Act 1958. The Regulations also provide for the continuation of certain provisions from the old Act to apply to specific persons or circumstances, ensuring a smooth transition for those already in the migration process. The application of these Regulations is primarily within the Commonwealth jurisdiction, as they pertain to federal migration laws and their transitional arrangements. The scope of these Regulations is further defined by their exclusions and exemptions, which are intended to streamline the transition to the new legislative framework. For instance, certain applications made after the commencement date of the Regulations will not benefit from the transitional provisions outlined in the old Act. Additionally, the Regulations allow for the application of subordinate instruments, such as the Migration Regulations (Amendment), which will provide further detailed rules and clarifications on the implementation of these transitional provisions. The Regulations commence on 1 September 1994, aligning with the effective date of the Migration Reform Act 1992, and are designed to facilitate a seamless transition for affected individuals and entities.

Key Provisions

The Migration Reform (Transitional Provisions) Regulations (Amendment) 1994 No. 281 modifies existing regulations to implement certain transitional provisions under the Migration Reform Act 1992. Section 42 of the Act allows for the Governor-General to make regulations that are necessary or convenient to implement the Act. The regulations also make use of specific powers under sections 40(2), 40(4), 40(6), and 40(8) of the Reform Act, which allow for the continued application of certain provisions of the old Migration Act 1958, modifications to these provisions, and the transition of certain visa statuses and applications. The Regulations impose obligations on the parties involved, such as ensuring that applicants for visas or entry permits who made applications before 19 December 1989 are considered under the transitional provisions, and that applications for the grant of visas or entry permits made before 1 September 1994 are dealt with in accordance with the new flexible provisions for waiving public interest criteria. Furthermore, the Regulations provide for the combining of review applications for decisions made prior to 1 September 1994, where the primary applications were also combined. The Regulations also establish consequences for non-compliance. While the specific penalties are not outlined in the text, it is implied that breaches of these Regulations could lead to legal consequences under the Migration Reform Act 1992 and the Migration Act 1958, including fines and other penalties prescribed by those Acts. The maximum penalties would depend on the specific breach and the relevant provisions of the Acts. These Regulations aim to ensure a smooth transition from the old Act to the new Act by clarifying terms, providing for the continued application of certain provisions, and introducing flexible provisions for waivers and combined review applications. The Regulations are designed to address transitional issues that arise due to the changes implemented by the Reform Act.

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