EXPLANATORY STATEMENT
STATUTORY RULES NO. 66 OF 1989
Migration Regulations (Amendments)
Issued by the authority of the
Minister for Immigration,
Local Government and Ethnic Affairs
Subject - | Migration Act 1958 Migration Regulations (Amendment) |
Section 67 of the Migration Act 1958 (the Act), provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed including the charging and recovery of fees in respect of applications for entry permits and visas.
The amending regulations amended the Migration Regulations (the Regulations) to set up a second application regime to allow for unsuccessful prescribed applicants for visas and entry permits to lodge a second application, upon payment of a fee of S240.
Such applications will be required to be lodged in Australia. After lodgement, the applications will be considered independently from normal “original” applications. These applications will then be considered by the Minister or one of his or her delegates.
Details of the regulations are set out in the attachment hereto.
ATTACHMENT
Details of the regulations are as follow:
Clause 1
This clause defines the Migration Regulations as the “Principal Regulations” for the purposes of the amending regulations.
Clause 2
This clause inserts 2 new definitions into regulation 3 of the Principal Regulations, namely, “Australian permanent resident” and “close relative”.
The definitions are necessary as under the new second application regime, some applicants must have the support of an Australian citizen or Australian permanent resident who is related to the applicant in the manner prescribed.
Clause 3
This clause repeals subregulation 29A(2B), which is now no longer appropriate as the new regulation 29B includes provisions dealing with second applications for further temporary entry permits. This subregulation provided that no fee was payable in respect of a second application for the grant of a further temporary entry permit if the applicant had previously applied for a further temporary entry permit, and was seeking a reconsideration of the decision to refuse such a temporary entry permit.
Clause 4
This clause inserts new regulations into the Principal Regulations.
Regulation 29B
This new regulation provides that a person lawfully in Australia at the time of lodgement of their original application may make a second application to seek an entry permit unrestricted as to time or conditions, or a further temporary entry permit.
In the case of a person seeking an entry permit under section 6 in connection with section 6A of the Act, ie. an entry permit granted after entry, a person may lodge a second application within 28 days after being notified of the refusal of their original application. Such a second application can be lodged by the person without any form of support being necessary.
In the case of a person who is seeking an extension of a temporary entry permit with permission to work, an application under the second application regime may be lodged by the person within 14 days after being notified of the refusal of the original decision. This application also does not require any form of support. A person seeking an extension of a temporary entry permit granted to allow the person to enter Australia for the purpose of either business discussions in Australia or pre-arranged medical treatment is subject to the same requirements.
Any other person who has entered Australia on the basis of a temporary entry permit issued for any other reason who seeks to lodge a second application in respect of an extension of their temporary entry permit also has 14 days to lodge that second application. Such a person must however have the support of a close relative in lodging their second application. This requirement has been set so that the system is not abused by persons who have come to Australia as tourists and have no connection with Australia.
Regulation 29BA
This new regulation provides for second applications in respect of applications for a visa in relation to a temporary entry permit.
A person seeking to lodge a second application must have support from a person in Australia. In the case of a person who sought, in the original application, to enter Australia to engage in employment, to enter into a business partnership or joint venture or for the purpose of business negotiations, support for the second application should be given by the original prospective employer, business partner or joint venturer. This provision enables business people with a genuine connection with Australia to be eligible to make a second application.
In the case of any other person seeking a visa in relation to temporary entry permit, such a person must have the support of a close relative. This requirement has been set so that the system is not abused by persons who are seeking to come to Australia as tourists and have no connection with Australia.
Regulation 29BB
This new regulation provides for second applications in respect of a visa in relation to migrant entry under certain schemes and programs administered by the Department which require some form of support at the initial application stage.
Similarly to other preceding provisions, such an application must be supported. The second application must be supported by the same person who supported the original application. This requirement has been set as without it, a person could lodge a second application on the basis of support obtained since the refusal of the original application. If this could occur, the system could be abused by persons who have obtained support solely for the purpose of lodging the second application.
Regulation 29BC
This new regulation provides for second applications to be lodged by persons who have been refused the grant of a resident return visa. Such persons may be either within or outside Australia but the application must be lodged in Australia.
Regulation 29BD
Because of the often sensitive nature of the decision making involved it is appropriate that certain classes of persons not have the right to lodge a second application under these amending regulations. In particular, persons seeking to enter Australia as a refugee or under a special humanitarian program administered by the Department of Immigration, Local Government and Ethnic Affairs are to be excluded. Persons seeking to enter as students are to be excluded because the basis of their entry into Australia is to study and then return to their home country.
Decisions taken initially by the Minister are also to be excluded from the system because the Minister in his or her capacity as the ultimate decision-maker should not be required to reconsider a decision previously made in that capacity.
Clause 5
This clause provides for transitional provisions to be included to accommodate persons who had received written notification that they had the right to lodge an application for review, under the previously existing administratively based review system. Such persons should be able to use the new second application regime as the sudden cessation of the previous system meant that many people would not have had the opportunity to lodge their applications for review.
The clause also provides that persons who already have an application under consideration under the previous administratively based review system should not be able to lodge a second application under these amending regulations.