Migration Regulations (Amendment) 1992 No. 291
EXPLANATORY STATEMENT STATUTORY RULES 1992 No. 291
Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs
Migration Act 1958
Migration Regulations (Amendment)
Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition sections 23 and 33 of the Act enable regulations to be made providing for different classes of visas and entry permits. The purpose of the Regulations is to:
create a new visa, the Burmese (special assistance) visa, to enable the permanent entry to Australia of certain Burmese citizens who are resident in Burma and subject to substantial discrimination there, and are sponsored by certain organisations in Australia;
create a new visa, the Sudanese (special assistance) visa, to enable the permanent entry to Australia of certain citizens of the Republic of Sudan who are outside Australia but have not effectively re-settled elsewhere, who have experienced substantial discrimination or serious distress because of ethnic origin or religious affiliation, and who have certain near relatives in Australia who have undertaken to provide specified assistance;
amend the definition of "good character" for the purposes of the Migration Regulations so that an applicant for a visa or entry permit who is assessed to be a risk to Australian national security, whether directly or indirectly, is unable to meet the requirement to be of good character. Previously the definition of good character did not exclude a person who might be assessed as an indirect risk to Australian national security; and
make a number of other minor amendments to the Migration Regulations which clarify the meaning or remove unintended ambiguities and which involve no changes in policy.
Details of the Regulations are set out in the Attachment. ATTACHMENT
Regulation 1 - Commencement
Subregulation 1.1 provides for the Regulations, other than regulations 6, 7 and 10, to commence on 17 September 1992.
Subregulation 1.2 provides for a retrospective operation of regulations 6 and 7 from 1 September 1992. Regulations 6 and 7 make a number of minor amendments to regulation 48A and regulation 48B of the Migration Regulations to clarify the meaning of those regulations. Regulation 6 also corrects a spelling error in regulation 48A. These amendments are intended to correct a number of unintended effects which flowed from a large number of clarifying amendments made to regulation 48A and regulation 48B by Statutory Rules No 278 of 1992, which commenced on its gazettal on 1 September 1992. The amendments made by regulations 6 and 7 are therefore being made to commence retrospectively on the same date. As the clarifying effect of these regulations can be only beneficial to all persons concerned and no substantive changes of policy are involved, no one will be disadvantaged by retrospectivity and therefore section 48 of the Acts Interpretation Act 1901 will not be infringed.
Subregulation 1.3 provides for regulation 10, which increases the fee for an employer nomination, to commence on 2 November 1992.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 4 (Interpretation - good character)
This regulation amends the definition of "good character" given in regulation 4 of the Migration Regulations to provide that an applicant for a visa or entry permit who is assessed to be a risk to Australian national security, whether directly or indirectly, is unable to meet the requirement to be, of good character. Previously the definition of good character did not exclude a person who might be assessed as an indirect risk to Australian national security.
Regulation 4 - Regulation 13 (Grant of visa)
This regulation makes a minor amendment to subparagraph 13(2)(b)(iii) of the Migration Regulations as a consequence of the introduction of the Burmese (special assistance) and the Sudanese (special assistance) visas by regulation 9 of these Regulations.
Regulation 5 - Regulation 42 (Prescribed criteria (entry permits))
This regulation makes a minor amendment to subregulation 42(2) of the Migration Regulations as a consequence of the introduction of the Burmese (special assistance) and the Sudanese (special assistance) visas and entry permits by these Regulations.
Regulation 6 - Regulation 48A (Business skills visa)
This regulation makes a number of minor amendments to regulation 48A of the Migration Regulations. These amendments correct a number of unintended effects which flowed from a large number of clarifying amendments made to regulation 48A by Statutory Rules No 278 of 1992, which commenced on 1 September 1992. The amendments made by this regulation are therefore being made to commence
retrospectively on the same date (see subregulation 1.2 above, regarding retrospectivity of regulations 6 and 7).
Regulation 7 - Regulation 48B (Business skills (senior executive) visa)
This regulation amends subregulation 48B(1) of the Migration Regulations to correct an unintended effect which flowed from a clarifying amendment made to the subregulation by Statutory Rules No 278 of 1992, which commenced on 1 September 1992. This amendment is therefore being made to commence retrospectively on the same date (see subregulation 1.2 above, regarding retrospectivity of regulations 6 and 7).
Regulation 8 - Regulation 107B (PRC (temporary) visa)
This regulation omits existing subparagraph 107B(1)(a)(ii) of the Migration Regulations and substitutes a new paragraph 107B(1)(a)(ii) to correct an unintended effect of amendments made to that regulation by Statutory Rules No 278 of 1992. The intention is that all persons who are granted a PRC (temporary) visa on the basis that they hold a PRC (temporary) entry permit which was granted to them as a principal person (ie, as an applicant who satisfied the requirements of having entered Australia on or before 20 June 1989 and being here on that date) must make a declaration that they do not intend to travel to the PRC whilst the holder of a PRC (temporary) visa.
The effect of the previous provision was that persons who are the spouses or dependent children of holders of PRC (temporary) entry permits do not have to make the declaration before grant of a PRC (temporary) visa. However, where such spouses and dependent children themselves have been granted the PRC (temporary) entry permit as principal persons, rather than on the basis of their marriage to or dependency on a person who held a PRC (temporary) entry permit, the intention is that they must also make the declaration before grant of a PRC (temporary) visa. The purpose of this amendment therefore is to ensure that all persons who were granted the PRC (temporary) entry permit as principal persons are required to make the declaration before grant of a PRC (temporary) visa.
Regulation 9 - New Regulations 107G and 107H
This regulation inserts two new regulations in the Migration Regulations. The new regulations are:
regulation 107G which creates the Burmese (special assistance) visa to enable the permanent entry to Australia of certain Burmese citizens who are resident in Burma, are subject to substantial discrimination there, and are sponsored by certain organisations in Australia. Permanent settlement in Australia must be assessed as the appropriate course for the applicant and not contrary to the interests of Australia.
There must also be compelling reasons for the granting of the visa. The numbers of Burmese (special assistance) visas are limited to 150 for applicants who have near relatives in Australia, and 100 for applicants who do not have near relatives in Australia; and
regulation 107H which creates the Sudanese (special assistance) visa, to enable the permanent entry to Australia of certain citizens of the Republic of Sudan who have experienced substantial discrimination or serious distress because of ethnic origin or religious affiliation. Applicants must be outside Australia but not effectively re-settled elsewhere, and permanent settlement in Australia must be assessed as the appropriate course for the applicant and not contrary to the interests of Australia.
There must also be compelling reasons for the granting of the visa. Applicants must have certain near relatives in Australia who have undertaken to provide specific assistance for 6 months after the person enters Australia.
Regulation 10 - Regulation 191A (Employer nomination fee)
This regulation increases the fee for an employer nomination from $100 to $250 as the result of a budget decision.
Regulation 11 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)
This regulation adds two new items to part 2 of Schedule 2 as a result of the introduction of the new Burmese (special assistance) and the Sudanese (special assistance) visas by these Regulations.
Regulation 12 - Schedule 3 (Classes of entry permits)
This regulation adds two new items to part 1 of Schedule 3 as a result of the introduction of the new Burmese (special assistance) and the Sudanese (special assistance) visas by these Regulations.
Regulation 13 - Schedule 8 (Fees)
This regulation adds two new items to part 1 of Schedule 8 to prescribe that there are no fees for the new Burmese (special assistance) and the Sudanese (special assistance) visas introduced by these Regulations.