Migration Regulations (Amendment) 1997 No. 301
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 301
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration 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.
Without limiting the generality of section 504, subsection 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class. The purposes of the Regulations are to amend the Migration Regulations to:
* make a technical amendment to regulation 2.08B to clarify that paragraph 2.08B(1)(da) is to apply only to an applicant for a Resolution of Status (Temporary) (Class UH) visa. Regulation 2.08B provides a right to add dependent children to an application made by a person for a Resolution of Status (Temporary) (Class UH) visa after that application has been made (regulation 3); and
* make minor consequential amendments to Part 805 of Schedule 2 to the Migration Regulations to clarify certain amendments to Part 805 made by Statutory Rules 1997 No. 288 which will also commence on 1 November 1997. Clause 805.211 relates to criteria to be satisfied for the grant of a Subclass 805 (Skilled) visa by an applicant who is the holder of a Subclass 457 (Business (Long Stay)) visa (regulation 4).
Regulation 1 - Commencement
This regulation provides that these Regulations commence on 1 November 1997.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 2.08B (Addition of dependent children to certain applications for temporary visas)
This regulation amends paragraph 2.08B(1)(da). This amendment clarifies that this paragraph only applies to an applicant for a Resolution of Status (Temporary) (Class UH) visa. This amendment is consistent with the policy intention. The amendment is required to put the matter beyond any possible doubt.
Regulation 4 - Schedule 2, Part 805 (Skilled)
Subregulation 4.1 amends subparagraph 805.211(2)(b)(iii) to omit "visa; or" and substitute "visa.". The amendment is consequential to the amendment contained in subregulation 4.2.
Subregulation 4.2 omits subparagraph 805.211(2)(b)(iv) so that the holder of a Subclass 457 (Business (Long Stay)) visa granted on the basis that his or her employer was a Pre-Qualified Business Sponsor is not precluded from being granted a Subclass 805 (Skilled) visa under subclause 805.211(2).
Subregulation 4.3 omits paragraph 805.212(2A)(b) and substitute's a new paragraph (b) so that any applicants who have been granted a Subclass 457 (Business (Long Stay)) visa hold a "qualifying visa" under subclause 805.212(2A). This effectively removes the existing barrier to being granted a Subclass 805 (Skilled) visa for applicants who hold a Subclass 457 (Business (Long Stay)) visa on the basis that their employer was a Pre-Qualified Business Sponsor.
The Regulations commence on 1 November 7.
Overview
The Migration Regulations (Amendment) 1997 No. 301 were enacted to address specific technical issues within the Migration Regulations that needed clarification and correction to ensure consistency with the policy objectives outlined in the Migration Act 1958. The amendments were introduced by the Parliament of Australia, specifically through the authority of the Minister for Immigration and Multicultural Affairs, to rectify misinterpretations in the existing regulations and to ensure that the provisions align with the intended policy outcomes. The primary objective of these amendments was to clarify the criteria for adding dependent children to certain temporary visa applications and to correct certain eligibility criteria for skilled visas, thereby facilitating a smoother application process and ensuring that the regulations are applied as intended.
These amendments, which came into effect on 1 November 1997, were designed to provide clarity and resolve ambiguities in the existing regulations, ensuring that the visa application process operates efficiently and in line with the objectives of the Migration Act. By refining the criteria for specific visas, the amendments aimed to support the broader policy goal of managing migration effectively while providing clarity to applicants and ensuring that the regulations are applied consistently and fairly.
Scope and Application
The Migration Regulations (Amendment) 1997 No. 301 applies to the Migration Regulations under the Migration Act 1958. These Regulations make amendments to clarify certain provisions regarding the addition of dependent children to applications for temporary visas and to address the eligibility criteria for skilled visas. Specifically, the amendments aim to ensure that the right to add dependent children applies only to applicants for a Resolution of Status (Temporary) (Class UH) visa, as well as to correct certain criteria related to skilled visa applications for holders of a Subclass 457 (Business (Long Stay)) visa. The Regulations are applicable across Australia, as they pertain to the Commonwealth's migration law framework. There are no stated exclusions or exemptions within these Regulations, but they do specify thresholds and criteria for visa applications as mandated by the Migration Act. The application of these Regulations is further extended or restricted through subordinate instruments as necessary to implement the provisions of the Act.
Key Provisions
The Migration Regulations (Amendment) 1997 No. 301 introduces several technical amendments to the Migration Regulations 1996. The main operative sections, as outlined in the Explanatory Statement, involve amendments to regulation 2.08B and consequential changes to Part 805 of Schedule 2. Regulation 2.08B, concerning the addition of dependent children to certain applications for temporary visas, is clarified to ensure it applies only to applicants for a Resolution of Status (Temporary) (Class UH) visa. This change aligns with policy intentions and eliminates any ambiguity regarding the scope of the provision. Part 805, which pertains to skilled visas, sees minor adjustments to ensure that holders of Subclass 457 (Business (Long Stay)) visas are not unduly restricted from applying for a Subclass 805 (Skilled) visa, particularly when their employer was a Pre-Qualified Business Sponsor.
The obligations imposed by these amendments require clarity and specificity in the application processes for temporary and skilled visas. For instance, applicants for a Resolution of Status (Temporary) (Class UH) visa must now adhere to the specific criteria outlined in regulation 2.08B, which governs the addition of dependent children to their applications post-submission. Similarly, holders of Subclass 457 visas are now under the obligation to meet the revised criteria in Part 805, ensuring that they are not erroneously barred from applying for a Subclass 805 visa due to their previous visa status. These obligations are aimed at streamlining the visa application process and ensuring that applicants meet all necessary requirements without unnecessary barriers.
Breaches of these regulations could lead to various civil or administrative consequences. For instance, an incorrect application for a Resolution of Status (Temporary) (Class UH) visa that does not comply with the clarified criteria in regulation 2.08B may result in the application being rejected or delayed. Similarly, a holder of a Subclass 457 visa who fails to meet the amended criteria in Part 805 might face complications in their application for a Subclass 805 visa. While the specific penalties for these breaches are not outlined in the text, non-compliance generally results in administrative penalties or the inability to proceed with the visa application. It is important for applicants and stakeholders to understand these obligations to avoid potential complications.