Migration Regulations (Amendment)

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EXPLANATORY STATEMENT

Subject: Migration Act 1958

Migration Regulations (Amendment)

1990 No. 109

Section 181 of the Migration Act 1958 (the Act) provides the power in so far as is relevant to prescribe matters which are required by the Act and which are necessary or convenient to be prescribed for the carrying out or giving effect to the Act and in particular making provision for and in relation to the charging and recovery of fees.

In addition, regulations are prescribed under the following powers:

- sections 23 and 33 of the Act provide that without limiting the generality of section 181, the regulations may provide for inter alia different classes of visa and entry permits respectively.

Section 6(4) of the Migration Legislation Amendment Act provides that the provisions of the Migration Act 1958 relating to the granting of visas and entry permits as in force prior to 19 December 1989 continue to have effect after that date for the purposes of applications for visas or entry permits made before that date.

The purpose of the regulations is to amend the Migration Regulations to:

- make a number of technical amendments to

(a) correct inaccuracies in the regulations; or

(b) remove disadvantages caused to individuals who were intended to be covered by the regulations in accordance with previous policies.

- enable grant of a visa to a person who has assisted the Australian government in security matters.

- extend the period of time in which illegal entrants who have been arrested, may apply for an entry permit.

- create a new class of visa - student (restricted) to provide entry into Australia for less than 6 months and subject to certain conditions for students to study English language and non-formal courses.


- provide access for review of a decision to refuse an entry permit to certain illegal entrants who lost that access on 19 December 1989.

- extend the period in which visitors may be granted a permanent entry permit on the basis of marriage to an Australian citizen from being granted a visitor entry permit prior to 1 July 1990 to before 1 December 1990.

- provide in the fee regime for persons applying for trainee (English language) visas, trainee (non-formal course) visas, and student (restricted visas) to pay a lower fee if an applicant comes from a country with a low overstay risk.

- enable review by the Minister of certain decisions to refuse visas and entry permits where a person lodged their application under the Migration Act before it was amended on 19 December 1989.

Details of the regulations are set out in the Attachment.

Authority: Sections 23, 33, 181 Migration Act 1958 Section 6 of the Migration Act (Amendment) Act 1989

Issued by the Minister of State

for Administrative Services

for and on behalf of the

Minister of State for

Immigration, Local Government

and Ethnic Affairs


ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Commencement

This amendment provides that regulation 18 is to have commenced on 19 December 1989 and regulation 19 is to have commenced on 16 March 1990. Theses dates correspond to similar amendments made by Statutory Rule No 75 of 1990.

Regulation 2 - Application for entry permit

This regulation amends paragraph 22(a)(i) of the Migration Regulations to require that an application is “in” the form approved by the Minister instead of “in accordance with” that form. This amendment was recommended by the Joint Select Committee on Migration Regulations.

This regulation amends regulation 22, of the Migration Regulations by adding a new subregulation 22(2). Currently persons who apply for an entry permit must show their visas. The amendment makes provision for persons who are exempt from holding visas to apply for entry permits.

Regulation 3 - Grant of entry permit - illegal entrants

This regulation amends regulation 35AA of the Migration Regulations so that some illegal entrants who entered Australia prior to 19 December 1989 can lodge applications for entry permits before 30 June 1990 instead of having a deadline of 31 May 1990.

Regulation 4 - Restrictions on re-entry

This regulation makes a technical amendment to ensure that people who hold temporary entry visas which operate as temporary entry permits are covered by Regulation 36 of the Migration Regulations.

Regulation 5 - Prescribed criteria - classes of entry permits

This regulation amends regulation 42(1A)(a) of the Migration Regulations to enable illegal entrants, who have been arrested under section 92 or 93 of the Act, to have 7 working days to lodge an application for an entry permit instead of 2 working days if they so request.

This regulation also makes a technical amendment to regulation 42 of the Migration Regulations.


Regulation 6 - Business (joint venture) visa

This regulation makes a technical amendment to regulation 48 of the Migration Regulations.

Regulation 7 - Distinguished talent and special service (independent) visa

This regulation amends regulation 50 of the Migration Regulations to add a further criterion for the grant of a Distinguished talent and special service (independent) visa to enable the grant of a visa to a person who has provided specialised assistance to the Australian Government in security matters.

Regulation 8 - Employer Nomination Visa

This regulation makes two amendments to regulation 51 of the Migration Regulations to bring the criteria into line with established practice. Firstly it amends paragraph 51(1)(d) to ensure that this criterion applies at the time of nomination rather than the time of application as required by regulation 34A.

The amendment also adds a subregulation (1A) to ensure that the potential employer does not have to engage in labour market testing if the Minister is satisfied that there is no need to find a suitable applicant in Australia.

Regulation 9 - Australian Requirement Visa

This requirement makes a technical amendment to regulation 56 of the Migration Regulations to correct the reference to ‘entry permits’ to ‘visa’.

Regulation 10 - Student (restricted) visa

This regulation adds a new regulation 87A to the Migration Regulations to provide for a new visa class. This new visa class will apply to persons who have been accepted for enrolment in certain courses of no more than 6 months duration.

Regulation 11 - Border Visas

This regulation amends regulation 111 of the Migration Regulation to provide for a person who is a temporary resident immediately prior to leaving Australia to be eligible for the grant of a border visa.


Regulation 12 - Border entry permit

This regulation amends regulation 112 of the Migration Regulations to provide that a person who is exempt from the requirement to hold a visa under the Migration Act and who makes an application for an entry permit under new subregulation 22(2), is eligible for the grant of a border entry permit.

Regulation 13 - Extended Eligibility (spouse) entry permit

This regulation makes a necessary consequential amendment to regulation 126 of the Migration Regulations as a result of the new regulation 42(1C)(ba) inserted by Statutory Rule No 75 of 1990.

This regulation also amends regulation 126(2)(b) of the Migration Regulations to enable visitors granted entry permits before 1 December 1990 to apply for permanent residence on the grounds of being a spouse of an Australian citizen or permanent resident. Previously this provision only applied to visitors granted entry permits before 1 June 1990.

Regulation 14 - Extended eligibility (family) entry permit

This regulation makes a necessary consequential amendment to regulation 127 of the Migration Regulations as a result of the new

regulation 42(1C)(ba) inserted by Statutory Rule No 75 of 1990.

Regulation 15 - Compassionate grounds entry permit

This regulation makes a necessary consequential amendment to regulation 140 of the Migration Regulations as a result of the new regulation 42(1C)(ba) inserted by Statutory Rule No 75 of 1990.

Regulation 16 - Reconsideration of decisions to refuse to grant a visa or entry permit

This regulations adds a new Division 1A - Reconsideration of decisions and a new regulation 173A to the Migration Regulations. This regulation will enable review by the Minister of certain decisions to refuse visas and entry permits where a person lodged their application before 19 December 1989, but lost their access to review of the decision to refuse as a result of the amendments to the Migration Act on 19 December 1989.


Regulation 17 - Notice under subsection 20(3) of the Act

This regulation makes technical and stylistic amendments to regulation 175 of the Migration Regulations.

Regulation 18 - Fee on application for temporary entry permit granted only in Australia

This regulation makes technical and stylistic amendments to paragraph (2)(a) of regulation 185.

Regulation 19 - Fee on application for temporary entry permit granted only in Australia

This regulation makes a technical amendment to regulation 185 of the Migration Regulations to correct the cross referencing in subregulation 185(2) and to bring subregulation (4A) into line with current practice by exempting certain applicants from the payment of the fee in subregulation 185(4) who apply for a private subsidised student entry permit.

Regulation 20 - Fee upon application for Trainee (English Language) Visa; Fee upon application for Trainee (non-formal course) Visa; Fee - application for reconsideration of decisions; and, Fee upon application for Student (restricted) Visa

This regulation adds a new regulation 197 to the Migration Regulations which provides a more detailed fee structure than that previously specified in Schedule 8, for the fee payable upon application for a trainee (English language) visa.

This regulation also adds a new regulation 198 to the Migration Regulations which provides a more detailed fee structure than that previously specified in Schedule 8, for the fee payable upon application for a trainee (non-formal course) visa.

In addition this regulation adds a new regulation 199 to the Migration Regulations which provides for a fee of $240 to be paid upon application for Ministerial reconsideration under new regulation 173A.

This regulation also adds a new regulation 200 to the Migration Regulations which sets out the fees to be paid upon application for a student (restricted) visa.


Regulation 21 - Schedule 2

This regulation amends Schedule 2 of the Migration Regulations to specify the prescribed criteria to apply to a Student (restricted) visa. In addition, the reference to “distinguished talent (independent)” visa is replaced with “distinguished talent and special service (independent)” visa.

Regulation 22 - Schedule 3

This regulation amends Schedule 3 of the Migration Regulations to include Student (restricted) entry permits. In addition the reference to “distinguished talent (independent)” entry permit is replaced with “distinguished talent and special service (independent)” entry permit.

Regulation 23 - Schedule 5

This regulation amends Schedule 5 of the Migration Regulations to include Student (restricted) visas and entry permits and set out the mandatory conditions to be met for grant of those visas and entry permits.

Regulation 24 - Schedule 8

This regulation makes a technical amendment to Schedule 8 of the Migration Regulations. It also amends schedule 8 to provide that the fee to be paid on application for a Student (restricted) visa is $30.

In addition this regulation amends items 43 and 44 in Schedule 8 to provide for variations in fees.

This regulation also replaces the reference to “distinguished talent (independent)” visa with “distinguished talent and special service (independent)” visa.

Overview

The Migration Regulations (Amendment) 1990 No. 109, enacted under the authority of Sections 23, 33, 181 of the Migration Act 1958 and Section 6 of the Migration Legislation Amendment Act 1989, aim to address various technical inaccuracies and policy gaps within the existing regulatory framework. This amendment responds to the need to correct regulatory inaccuracies, provide opportunities for certain individuals such as those assisting the Australian government in security matters, and introduce new visa classes like the student (restricted) visa to cater to short-term educational needs. The regulations also extend the application period for illegal entrants and provide fee adjustments based on overstay risk assessments. Issued by the Minister of State for Administrative Services on behalf of the Minister of State for Immigration, Local Government and Ethnic Affairs, the primary policy objective is to ensure the Migration Act and its regulations remain aligned with current policy and administrative practices. These amendments are intended to ensure that the Migration Regulations remain effective and relevant, providing clarity and fairness in the application process for visas and entry permits. By addressing both technical issues and extending eligibility criteria, the regulations seek to enhance the efficiency and equity of the migration system, ensuring it meets the needs of both the government and applicants.

Scope and Application

The Migration Regulations (Amendment) 1990 No. 109 amends the Migration Regulations 1994, providing technical amendments and introducing new provisions under the Migration Act 1958. These amendments apply to individuals and entities involved in visa and entry permit applications, including illegal entrants, students, and those assisting the Australian government in security matters. The regulations also address fee structures for specific types of visas, such as trainee and student visas, particularly for applicants from countries with a low risk of overstay. The regulations have a national scope, applying across Australia, and are subject to further specification through subordinate instruments. Certain provisions apply retroactively to applications made before 19 December 1989, ensuring that these applications remain subject to the previous regulatory framework. Notably, the regulations exclude certain applicants from paying fees for specific types of visas if they come from countries with a low overstay risk. The amendments are designed to correct inaccuracies, remove disadvantages, and provide clarity and consistency in the application of the Migration Act 1958.

Key Provisions

The primary operative sections of the Migration Regulations (Amendment) 1990 No. 109 include several amendments to the existing Migration Regulations, which are outlined in the explanatory statement and the attached detailed provisions. Section 181 of the Migration Act 1958 empowers the Minister to make regulations necessary or convenient to carry out or give effect to the Act, including provisions for charging and recovery of fees. Section 23 and 33 further provide the authority for regulations concerning different classes of visas and entry permits respectively. These sections are crucial in enabling the Minister to update and refine the regulatory framework governing visa applications and the granting of entry permits in Australia. The Act imposes various obligations and requirements on the parties it governs. For instance, applicants for entry permits must now submit their applications in the form approved by the Minister, rather than merely in accordance with that form. Illegal entrants who were arrested under sections 92 or 93 of the Act now have seven working days to lodge an application for an entry permit, instead of the previous two working days. The Act also introduces a new visa class, the student (restricted) visa, which permits entry into Australia for less than six months under specific conditions. Additionally, the Act modifies the eligibility criteria for various types of visas, such as the Distinguished Talent and Special Service (independent) visa, which now includes a criterion for individuals who have provided specialised assistance to the Australian government in security matters. The Amendment Regulations include several provisions that carry specific consequences for non-compliance. While the explanatory statement does not explicitly outline the penalties for breaches, breaches of migration regulations can generally lead to serious consequences. For instance, illegal entry or overstaying a visa can result in civil penalties, criminal charges, and potential deportation. Failure to comply with the new requirements for application forms or fees may lead to the refusal of visa applications or entry permits. The introduction of the new student (restricted) visa and its associated conditions also introduces a framework for compliance, with non-compliance potentially leading to similar consequences as outlined for other visa categories. In summary, the Migration Regulations (Amendment) 1990 No. 109 introduces a series of amendments designed to refine and update the regulatory framework for visa applications and entry permits in Australia. These amendments impose specific obligations on applicants and introduce new visa categories with associated conditions. While the explanatory statement does not detail specific penalties for non-compliance, breaches of migration regulations generally carry significant consequences, including civil penalties, criminal charges, and deportation.

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