Migration Regulations (Amendment) 1998 No. 139
EXPLANATORY STATEMENT
STATUTORY RULES 1998 NO. 139
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, paragraph 504(1)(a) of the Act provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the Regulations. In addition, regulations may be made pursuant to the following powers:
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- subsection 33(2) provides for regulations to be made which prescribe status for the purpose of the grant of special purpose visas; and
- subsection 93(1) of the Act provides that the Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification.
The purposes of the Regulations are to amend the Migration Regulations to provide a definition of "community services" for the purposes of the Migration Regulations, to increase the number of points awarded under the points test for certain age qualifications, to increase the visa application charge for an Electronic Travel Authority (Business Entrant - Long Validity), Subclass 956 visa and to insert Malaysia into the definition of "SOFA [Status of Forces Agreement] forces civilian component" and "SOFA forces member". Details of the regulations are as follows:
Details of the regulations are as follows:
Regulation 1 provides for these Regulations to commence on 1 July 1998.
Regulation 2 provides for the Migration Regulations to be amended as set out in these Regulations.
Subregulation 3.1 provides that Malaysia is to be included in the definition of "SOFA forces civilian component member".
Subregulation 3.2 provides that Malaysia is to be included in the definition of "SOFA forces member".
The inclusion of "Malaysia" in the above definitions. reflects the Status of Forces Agreement ("SOFA") entered into between the Government of Australia and the Government of Malaysia.
Subregulation 3.3 inserts a definition of "community services" into regulation 1.03 to clarify that all Australian social security benefits, allowances and pensions come within the meaning of "community services" in the Migration Regulations.
In particular, the amendments make clear that the likelihood of an applicant's becoming eligible for social security income support, in relation to a medical condition, is a factor to be taken into account under the public interest criteria at paragraphs 4005(c), 4006A(1)(c) and 4007(1)(c) of Schedule 4 to the Migration Regulations.
Regulation 4 amends item 1208A of Schedule 1 to the Migration Regulations to increase the visa application charge for an Electronic Travel Authority (Business Entrant - Long Validity), Subclass 956 visa from $45 to $50.
Regulation 5 amends items 6203 and 6204 of Schedule 6 to the Migration Regulations. Subregulation 5.1 amends item 6203 by increasing the number of points awarded for age qualification for applicants aged not less than 3 5 years and under 40 years at time of application from 15 points to 20 points. Subregulation 5.2 amends item 6204 by increasing the number of points awarded for applicants aged not less than 40 years and under 45 years at time of application from 10 points to 15 points. The Regulations commence on 1 July 1998.
Overview
The Migration Regulations (Amendment) 1998 No. 139 was enacted to amend the Migration Regulations of 1958 under the Migration Act 1958. This amendment was necessary to address several specific issues, including the need for a clearer definition of "community services" for the purposes of the Migration Regulations, the requirement to adjust points awarded under the points test for certain age qualifications, and the need to update visa application charges and the definition of "SOFA forces member" to reflect new international agreements. The enacting body is the Minister for Immigration and Multicultural Affairs, with the overarching policy objective being to ensure that the regulations align with the current social, economic, and international obligations of Australia.
These amendments aim to refine the criteria for visa applications, particularly by clarifying the scope of "community services" to include all Australian social security benefits, allowances, and pensions. Additionally, the amendments increase the points awarded for specific age qualifications under the points test, thereby potentially impacting the eligibility of applicants in certain age brackets. Furthermore, the changes include an update to the visa application charge for specific visas and incorporate Malaysia into the definitions relevant to the Status of Forces Agreement, reflecting the updated agreement between Australia and Malaysia. These adjustments are intended to provide a more precise and effective regulatory framework for managing migration under the Migration Act.
Scope and Application
The Migration Regulations (Amendment) 1998 No. 139 apply to individuals and entities involved in the migration process in Australia, including applicants for visas, their representatives, and immigration authorities. These Regulations amend the Migration Regulations to include Malaysia in the definition of "SOFA forces civilian component member" and "SOFA forces member" to reflect the Status of Forces Agreement between Australia and Malaysia. Additionally, they define "community services" to encompass Australian social security benefits, allowances, and pensions, thereby clarifying that the likelihood of an applicant's eligibility for social security income support in relation to a medical condition is a factor under the public interest criteria. Furthermore, the Regulations increase the visa application charge for certain types of visas, such as the Electronic Travel Authority (Business Entrant - Long Validity), Subclass 956 visa, from $45 to $50, and adjust the points awarded under the points test for certain age qualifications. These changes are intended to be applied nationally across Australia. The Regulations provide specific exclusions and thresholds as defined within the amendments, and any further detailed application of the Regulations may be prescribed through subordinate instruments.
Key Provisions
The key operative sections of the Migration Regulations (Amendment) 1998 No. 139 include Regulation 1, which sets the commencement date of these Regulations as 1 July 1998, and Regulation 2, which indicates that the Migration Regulations are amended as outlined in these Regulations (Reg 1, 2). Regulation 3 provides for the inclusion of "Malaysia" in the definitions of "SOFA forces civilian component member" and "SOFA forces member" (Reg 3.1, 3.2). This amendment reflects the Status of Forces Agreement between Australia and Malaysia. Regulation 4 increases the visa application charge for an Electronic Travel Authority (Business Entrant - Long Validity), Subclass 956 visa, from $45 to $50 (Reg 4). Regulation 5 adjusts the points awarded under the points test for certain age qualifications (Reg 5.1, 5.2).
The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, the Minister must ensure that the amendments to the Migration Regulations, including the new definitions and changes to fees and points, are implemented as per the Regulations (Reg 2). The amendments require the inclusion of "Malaysia" in the definitions of "SOFA forces civilian component member" and "SOFA forces member" to reflect the Status of Forces Agreement (Reg 3.1, 3.2). Additionally, the amended Regulations clarify that Australian social security benefits, allowances, and pensions are considered "community services" (Reg 3.3). The Minister must also enforce the increased visa application charge for the specified visa subclass (Reg 4) and update the points awarded for age qualifications (Reg 5.1, 5.2).
Any breaches of the amended Migration Regulations may result in various civil and criminal consequences. For instance, failure to comply with the new fees for visa applications, as outlined in Regulation 4, could result in penalties or other enforcement actions. Additionally, if individuals or entities do not adhere to the new points system for age qualifications in Regulation 5, this may affect their eligibility for certain visas. While specific penalties are not detailed in the explanatory statement, breaches of the Migration Act generally attract penalties, which can include fines and imprisonment. For example, under section 231 of the Migration Act 1958, a person who contravenes a provision of the Act can be fined up to $126,000 for individuals and $630,000 for bodies corporate, along with potential imprisonment terms.