EXPLANATORY STATEMENT
Migration Regulations 1994
DETERMINATION – MEANING OF SOCIAL SECURITY BENEFITS 2015
- This Instrument is made under subregulation 2.06AAB(3) of the Migration Regulations 1994 (the Regulations).
2. The Safe Haven Enterprise (Class XE) visa (safe haven enterprise visa) was introduced as a class of temporary visas by the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Subsection 46A(1A) of the Migration Act 1958 (the Act) has the effect that an unauthorised maritime arrival in Australia who holds or has ever held a safe haven enterprise visa (visa holder) is not prevented from making a valid application for visa subclasses prescribed in the Regulations, if the applicant satisfies any employment, educational or social security benefit requirements prescribed under subregulation 2.06AAB(2). Those requirements are satisfied by a visa holder, whether the applicant himself or herself under paragraph 2.06AAB(2)(a), or a member of the same family unit as the applicant under paragraph 2.06AAB(2)(b).
3. Under subparagraph 2.06AAB(2)(a)(i), the employment and social security benefit requirements are satisfied if the visa holder, for a minimum period or periods totalling 42 months (whether consecutive or non-consecutive), is engaged in employment in a regional area. The visa holder must not at the same time as being engaged in employment, receive any social security benefits. Engaged in employment and regional area are determined and specified separately by legislative instrument.
4. The purpose and operation of this Instrument is to determine the meaning of social security benefits for the purposes of subparagraph 2.06AAB(2)(a)(i). A visa holder is taken to receive social security benefits if at any time, while the visa holder is engaged in employment for the purposes of subparagraph 2.06AAB(2)(a)(i), the visa holder receives Special Benefit payment(s), which is a payment made under Part 2.15 of the Social Security Act 1991.
5. A visa holder may receive social security benefits within the meaning of this Instrument provided that he or she is not engaged in employment for the purposes of subparagraph 2.06AAB(2)(a)(i). For example, the visa holder is not prevented from receiving Special Benefit payments under this Instrument while he or she is enrolled in full-time study at an educational institution for the purposes of subparagraph 2.06AAB(2)(a)(ii).
6. Consultation was undertaken before the Instrument was made with the Department of Social Services.
7. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 17300).
8. Under section 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
9. The Instrument commences on 18 April 2015.