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.
Overview
The Migration Regulations 1994 Determination – Meaning of Social Security Benefits 2015 was enacted to clarify the definition of social security benefits for the purposes of the Safe Haven Enterprise (Class XE) visa introduced by the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014. This instrument was developed under subregulation 2.06AAB(3) of the Migration Regulations 1994 and was enacted by the Australian Parliament to ensure that visa holders who are engaged in employment in regional areas for a specified period are not simultaneously receiving social security benefits, thus addressing a potential gap in the eligibility criteria for these temporary visas. The explanatory statement specifies that a visa holder is considered to receive social security benefits if they obtain Special Benefit payments while engaged in employment, providing clarity on what constitutes receiving such benefits and under what circumstances a visa holder may still be eligible for social security payments, such as during full-time study.
Scope and Application
The Migration Regulations 1994 Determination – Meaning of Social Security Benefits 2015 applies to individuals who hold or have held a Safe Haven Enterprise (Class XE) visa, commonly referred to as a safe haven enterprise visa, which was introduced by the Migration Amendment (Resolving the Asylum Legacy Caseload) Act 2014. These individuals, referred to as visa holders, must comply with specific employment, educational, or social security benefit requirements to be eligible for other visa subclasses under the Migration Regulations 1994. The requirements are met if the visa holder, or a member of the same family unit, is engaged in employment for a total of 42 months in a regional area and does not receive any social security benefits during this period. The terms "engaged in employment" and "regional area" are further defined by separate legislative instruments. This Instrument specifically clarifies that a visa holder is considered to be receiving social security benefits if they receive Special Benefit payments under the Social Security Act 1991 while being engaged in employment, except when they are enrolled in full-time study. The Instrument is made under subregulation 2.06AAB(3) of the Migration Regulations 1994 and commenced on 18 April 2015.
Key Provisions
The main operative sections of this Instrument, made under subregulation 2.06AAB(3) of the Migration Regulations 1994, are sections 3 to 6. Section 3 defines the purpose of this Instrument, which is to clarify the meaning of social security benefits for visa holders under subparagraph 2.06AAB(2)(a)(i). Section 4 specifies that a visa holder is considered to be receiving social security benefits if they receive Special Benefit payments while engaged in employment for the purposes of subparagraph 2.06AAB(2)(a)(i). Section 5 clarifies that visa holders can receive social security benefits if they are not engaged in employment for the purposes of subparagraph 2.06AAB(2)(a)(i), such as while enrolled in full-time study. Section 6 confirms that this Instrument commences on 18 April 2015.
This Act imposes several obligations and requirements on the entities it governs. Firstly, visa holders must be engaged in employment in a regional area for a minimum period or periods totalling 42 months, as specified under subparagraph 2.06AAB(2)(a)(i). Secondly, visa holders must not receive any social security benefits while being engaged in such employment. However, if a visa holder is not engaged in employment, such as during full-time study, they may receive social security benefits, as outlined in section 5. This distinction is crucial for determining eligibility for other visa subclasses under the Migration Regulations 1994.
Breach of the provisions outlined in this Instrument may lead to various consequences. While the Instrument itself does not explicitly state penalties for non-compliance, failure to adhere to the employment and social security benefit requirements could affect a visa holder's eligibility for other visa subclasses. Such breaches may result in the rejection of visa applications or the cancellation of existing visas, depending on the specific circumstances and applicable laws. Additionally, individuals who deliberately provide false information or engage in fraudulent activities to obtain a visa or other benefits may face criminal charges, fines, and imprisonment under the Migration Act 1958 and other relevant legislation.