Migration Regulations (Amendment)

EXPLANATORY STATEMENT

Statutory Rules 1990 No. 320

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 particular making provision for and in relation to the charging and recovery of fees. 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

enable citizens of Namibia to lodge applications in South Africa for visas for temporary residence in Australia.

exempt People’s Republic of China (PRC) citizens from the requirement to produce a passport or valid travel document when applying for an entry permit when in Australia.

extend the operation of Division 3 of Part 3 and Part 2 of Schedule 2 of the Regulations until 31 December 1990, to avoid a policy/procedural vacuum while the policy underlying the regulations affected is completed.

enable the grant, without a fee, of a PRC (temporary) entry permit to the spouse or dependent

child of a person who has, or has applied for, a PRC (temporary) entry permit.

create a PRC (temporary) visa with a $30 fee to enable re-entry for holders of PRC (temporary) entry permits.

enable the refund of the fee charged for reconsideration of an adverse decision under regulation 173A if the reconsideration results in the grant to the applicant of a visa or entry permit.

increase fees for migration, permanent residence granted in Australia and temporary residence in accord with Cabinet’s decision.

make a number of minor technical and stylistic amendments.

Details of the Regulations are set out in the Attachment.

Issued by the Minister for Immigration, Local Government and Ethnic Affairs

ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Commencement

This regulation provides that the amendment to regulation 99 of the Migration Regulations is retrospective to 1 October 1990 to ensure that there is no break in the continuity of regulations 100 - 107. These regulations would otherwise have ended on 30 September 1990 leaving a policy/procedural vacuum. (See comments in relation to Regulation 7).

This regulation also provides that the amendment to regulation 173A of the Migration Regulations is retrospective to 31 August 1990, the date on which regulation 173A commenced.

In both these cases, retrospectivity will prevent disadvantage to individuals.

Regulation 2 - Amendment

This regulation provides for the Migration Regulations to be amended.

Regulation 3 - Regulation 2A (Interpretation - adopted)

This regulation makes a minor grammatical amendment to regulation 2A of the Migration Regulations.

Regulation 4 - Regulation 11 (Application for visa outside Australia)

Regulation 11 of the Migration Regulations prevents applications for visas that would result in the grant of a temporary entry permit on entering Australia being lodged in South Africa. An exception to this is if an applicant is a citizen of certain specified other African countries.

This regulation amends regulation 11 to enable citizens of Namibia to lodge applications for visas in South Africa as Namibia has now attained independence from South Africa.

Regulation 5 - Regulation 22 (Application for entry permit)

Regulation 22 of the Migration Regulations requires that an applicant for an entry permit produce the passport he or she used for entry to Australia, or a valid travel document. This regulation amends regulation 22 to exempt PRC citizens from this requirement as a main criterion for the grant of temporary residence to a PRC citizen is that the applicant appears on the Department’s movement records.

Regulation 6 - Regulation 40 (PRC (temporary) entry permit)

Regulation 8 of these Regulations amends the Migration Regulations to enable the grant of an entry permit to the dependent of a person who holds a PRC (temporary) entry permit.

This regulation makes a consequential amendment to regulation 40 of the Migration Regulations, which sets out prescribed changes in circumstances, to include these dependents.

Regulation 7 - Regulation 99 (Division to cease to have effect)

Regulation 99 of the Migration Regulations contains a sunset clause of 30 September 1990 for Division 3 of Part 3 of the Regulations and Part 2 of Schedule 2. This Division contains additional criteria in relation to visas subject to special provision.

This regulation amends regulation 99 of the Migration Regulations to extend its operation to 31 December 1990 by which time a review of the policy reflected in the regulations affected should be completed.

Regulation 8 - Regulation 119H (PRC (temporary) entry permit)

This regulation amends regulation 119H of the Migration Regulations to enable the grant of a PRC (temporary) entry permit to the spouse or dependent child of a PRC citizen in Australia.

Regulation 9 - New regulation 119HA

This regulation inserts a new regulation 119HA into the Migration Regulations to provide for the grant of a PRC (temporary) visa so that re-entry facilities can be provided to holders of PRC (temporary) entry permits.

Regulations 10 to 15 inclusive - Regulations 120 to 123A and Regulation 125

The amendments to these regulations are of a minor technical nature. They re-insert conjunctions which were inadvertently omitted when amendments were made by Statutory Rules No. 251 of 1990.

Regulation 16 - Regulation 124 (Grant of student entry permit to holder of, or person included in. diplomatic visa or holder of prescribed temporary entry permit)

This regulation amends regulation 124 of the Migration Regulations to insert conjunctions which were previously implied.

Regulation 17 - Regulation 143 (Waiver of good character requirement)

Regulation 143 of the Migration Regulations enables waiver of the good character requirement in certain circumstances. It was intended that the circumstances in regulation 143(c) apply only to applicants for refugee or humanitarian visas or entry permits. This amendment ensures that this is the case.

The regulation also amends regulation 143 of the Migration Regulations to insert conjunctions which were previously implied.

Regulation 18 -Regulation 146 (Qualifications - suitability for employment)

This regulation makes minor, purely technical amendments to regulation 14 6 of the Migration Regulations as a consequence of an amendment made to regulation 146 by Statutory Rules No. 251 of 1990.

Regulation 19 - Regulation 173A (Reconsideration of decisions to refuse to grant a visa or entry permit)

This regulation makes a minor amendment to regulation 173A of the Migration Regulations so that the reference to applications lodged “before 31 August 1990” is changed to “on or before 31 August 1990”. This amendment reflects announced policy.

Regulation 20 - Regulation 183A (Fee on application for a sport visa)

This regulation makes a minor stylistic and technical amendment to correct the layout of regulation 183A as a consequence of an amendment made to regulation 183A by Statutory Rules No. 279 of 1990.

Regulation 21 - Regulation 190 (New regulation 1990)

This regulation inserts a new regulation 190 into the Migration Regulations to exempt a person applying for a PRC (temporary) entry permit, as the spouse or dependent child of a person who holds or is applying for a PRC (temporary) entry permit, from paying the $30 application fee.

Regulation 22 - Regulation 22 (Fee on application for reconsideration of a decision)

This regulation will enable the refund to an applicant of the fee paid under regulation 200 of the Migration Regulations if on reconsideration of a decision under regulation 173A the applicant is granted a visa or entry permit.

Regulation 23 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

This regulation makes a purely technical stylistic amendment to Part 1 of Schedule 2.

This regulation also adds an item 14 to Part 3 of Schedule 2 as a result of the new PRC (temporary) visa inserted by regulation 9 of these Regulations.

Regulation 24 - Schedule 5 (Mandatory conditions for grant of visas and entry permits)

This regulation amends the mandatory conditions listed in items 3, 4, 6, 7 and 8 of Schedule 5 of the Migration Regulations to require that any permission given must be “in writing”.

Regulation 25 - Schedule 8 (Fees)

This regulation adds item 78 to Part 1 of Schedule 8 to provide for a $30 fee for the new PRC (temporary) visa.

Regulation 26 - Amendments relating to fees

This regulation is a Schedule which sets out increases to be made in fees. Increases to application fees for migration visas and permanent residence are indexed in accordance with the CPI as a result of Cabinet Decision 10057 of 1 September 1987.

Increases to the application fees for temporary residence from $30 to $100 are made in accordance with Cabinet Minute 14015 of 6 August 1990.

This regulation also amends item 16 of Part 2 of Schedule 8 to exempt spouses and dependent children of PRC citizens from the application fee when applying for a PRC (temporary) entry permit.