Migration Regulations (Amendment)

Legislation au C2004L05190 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Subject: 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 him to make regulations providing for different classes of visas and entry permits.

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

make certain regulations retrospective to provide continuity and prevent disadvantage to individuals (the retrospective regulations do not disadvantage a person other than the Commonwealth, and therefore satisfy subsection 48(2) of the Acts Interpretation Act 1901).

enable students to apply for border visas.

extend the operation of Lebanese (temporary) and Sri Lankan (temporary) entry permits from 31 July 1990 to 31 October 1990.

amend the points system to enable grant of points to persons in certain occupations not previously covered.

remove fees for certain visas.

provide an additional step in the procedures to be followed prior to the Minister ordering mandatory deportation.

provide for certain technical changes.

Details of the Regulations are set out in the Attachment.

Authority; Sections 23, 33, 181 of the Migration Act 1958

Issued by the Minister of State

for Immigration, Local Government

& Ethnic Affairs


ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Commencement This regulation provides that

(a)                regulations 6-9 inclusive and 11 and 12 are retrospective to 19 December 1989 to ensure that temporary entry permits granted in accordance with these regulations are valid: otherwise individuals granted such entry permits would be severely disadvantaged.

(b)                regulation 3 is retrospective to 1 July 1990 to regularise the grant of border visas/entry permits to certain students who would otherwise be significantly disadvantaged.

(c)                regulation 13 is retrospective to 1 July 1990 to ensure that certain persons who have applied for migrant entry since that date will be eligible to be granted points which otherwise would not be available to them.

(d)                regulation 14 is retrospective to 12 July 1990 to ensure continuity because these regulations insert a new regulation 178(b) which replaces the previous regulation 178(b) which was repealed on 12 July 1990.

(e)                regulations 4 and 5 are retrospective to 1 August 1990 to ensure that there is no break in the continuity of regulations 119F and 119G which in effect ended on 31 July 1990.

Regulation 2 - Amendments

This regulation provides for the Migration Regulations to be amended.

Regulation 3 - Border Visas

This regulation amends regulation 111 of the Migration Regulations to extend its operation so that students can apply for border visas. A border visa is effectively an emergency facility which enables grant of a visa when a person has left Australia in circumstances where it was not reasonably practical for that person to obtain a return visa before departure.


Regulations 4 and 5 - Lebanese and Sri Lankan (temporary) entry permits

This regulation extends the operation of regulations 119F and 119G of the Migration Regulations from 31 July 1990 to 31 October 1990. This regulation enables grant of temporary entry permits to Lebanese and Sri Lankan citizens who were temporarily in Australia on 31 July 1990, for a period ending no later than 31 October 1990.

Regulations 6 to 12 (inclusive) - Grant of certain temporary entry permits to persons in Australia

This is to correct a technical problem in that the criteria prescribed for the grant of the temporary entry permit sought are prescribed in terms of that entry permit. However the regulations have been developed around the concept that in most instances criteria are established for temporary entry visas and the criterion for the grant of a temporary entry permit is that the applicant satisfies the criteria for the grant of the temporary entry visa corresponding to the temporary entry permit applied for plus any additional criteria specific to the temporary entry permit. This amendment corrects regulations 120 - 125 so that they reflect this situation.

Regulation 13 - Qualification - suitability for employment

This regulation amends regulation 146 of the Migration Regulations to allow for the allocation of points for skilled occupations that do not have a training and qualification award system structured along the lines of trade training or formal tertiary studies. This is achieved by introducing a “Professional - Equivalent Occupation List” and a “Technical - Equivalent Occupation List”, both of which will be published in the Gazette and will be similar in principle to the Priority List of Occupations.

Regulation 14 - Prescribed procedures - subsection 59(2) of the Act

This regulation amends regulation 178 of the Migration Regulations to require that the Minister ascertain whether a person has applied for refugee status or territorial asylum (as distinct from having been granted such) before ordering mandatory deportation. It provides an additional step in the procedures to be followed.


Regulation 15 - Schedule 8

This regulation amends schedule 8 of the Migration Regulations to remove the requirement that fees be paid upon application for a private subsidised student visa, a student (AIDAB) visa, or a student (Equity and Merit Scholarship Scheme) visa.

Overview

The Migration Regulations (Amendment) (No. 2) 2004 was enacted to address various issues within the Migration Act 1958, providing a series of amendments to the Migration Regulations. This legislation was introduced by the Minister of State for Immigration, Local Government, and Ethnic Affairs and aims to provide continuity and prevent disadvantage to individuals, ensure the proper administration of the visa system, and correct technical issues. The amendments include making certain regulations retrospective to avoid disadvantaging individuals, enabling students to apply for border visas, extending the operation of Lebanese and Sri Lankan temporary entry permits, amending the points system to cover certain occupations not previously included, removing fees for specific visas, and introducing a new procedural step before mandatory deportation orders are made. These changes are designed to ensure the smooth operation of the visa system and to provide clarity and fairness in the application of migration regulations.

Scope and Application

The Migration Regulations (Amendment) issued under the Migration Act 1958 applies to a broad range of individuals and entities involved in migration matters within Australia. These regulations are designed to provide continuity and prevent disadvantage to individuals, particularly by making certain regulations retrospective. They apply to temporary entry permits, visa applications, and procedures for mandatory deportation. The geographic reach of these regulations is national, affecting all jurisdictions within Australia. However, the regulations extend or restrict application through subordinate instruments, ensuring that they are tailored to specific needs and contexts. The stated exclusions or thresholds are primarily focused on ensuring that the regulations do not disadvantage individuals beyond what is necessary to achieve their objectives. For example, the retrospective application of certain regulations is specifically designed to prevent disadvantage to individuals who would otherwise be significantly affected by the changes. These amendments enable students to apply for border visas, extend the operation of Lebanese and Sri Lankan temporary entry permits, amend the points system to include certain occupations, remove fees for certain visas, and provide an additional step in the procedures for mandatory deportation.

Key Provisions

The key provisions of the Migration Regulations (Amendment) concern several retrospective amendments to ensure continuity and prevent disadvantage for certain individuals (Reg. 1). Specifically, regulations 6-9, 11, and 12 are retrospective to 19 December 1989, regulation 3 is retrospective to 1 July 1990, regulation 13 is retrospective to 12 July 1990, and regulations 4 and 5 are retrospective to 1 August 1990. These amendments ensure the validity of temporary entry permits, eligibility for border visas for students, the grant of points for certain occupations, and the continuity of regulations regarding Lebanese and Sri Lankan temporary entry permits. Regulation 2 amends the Migration Regulations to allow students to apply for border visas (Reg. 3), extend the operation of Lebanese and Sri Lankan temporary entry permits from 31 July 1990 to 31 October 1990 (Regs. 4 and 5), and amend the points system to include certain occupations not previously covered (Reg. 13). Regulation 14 requires the Minister to ascertain whether a person has applied for refugee status or territorial asylum before ordering mandatory deportation, adding an additional procedural step. Regulation 15 removes fees for certain visas, such as private subsidised student visas, student (AIDAB) visas, and student (Equity and Merit Scholarship Scheme) visas. The obligations imposed by these regulations are primarily administrative in nature. They require the Department of Immigration, Local Government and Ethnic Affairs to ensure that the amended regulations are applied consistently and fairly, particularly in relation to the retrospective provisions and the additional procedural steps required for certain actions. For example, the department must verify that individuals granted temporary entry permits under the retrospective regulations are eligible and that they meet the criteria for such permits. Additionally, the department must ensure that the new points system for skilled occupations is implemented correctly and that the lists of equivalent occupations are published and made available to the public. The department is also responsible for removing fees for the specified visas as per Regulation 15. There are no specific offences, penalties, or civil/criminal consequences outlined for breach of these regulations in the provided text. However, it is important to note that breaches of the Migration Act 1958 or its regulations could lead to various legal consequences, including fines, imprisonment, or deportation, depending on the nature and severity of the breach. The Act itself provides for penalties for various contraventions, and these penalties can vary significantly based on the specific provision breached and the circumstances of the case. For instance, knowingly providing false or misleading information to an immigration officer can result in fines and imprisonment, while overstaying a visa can lead to penalties and potential bans from re-entering Australia. It is essential for individuals and entities governed by these regulations to comply with all requirements to avoid any potential legal repercussions.

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Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Commencement Provisions
Regulatory Standards
Reporting & Disclosure Obligations
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.