Migration Regulations (Amendment)

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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.

 

Authority:

Sections 23, 33, 181 of the Migration Act 1958 Cabinet Minute Nos.

13697 of 7 May 1990,

14015 of 6 August 1990, and

10057 of 1 September 1987

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.

Overview

The Migration Regulations (Amendment) Statutory Rules 1990 No. 320, enacted to amend the Migration Regulations 1994 under the authority of sections 23, 33, and 181 of the Migration Act 1958, aim to address various gaps and issues in the visa application and entry permit processes. The amendments introduced by these regulations include enabling citizens of Namibia to lodge visa applications in South Africa, exempting People’s Republic of China (PRC) citizens from producing a passport or valid travel document when applying for an entry permit in Australia, extending the operation of certain regulatory divisions to avoid procedural gaps, and creating new visa categories and fee structures for PRC citizens and their dependents. Additionally, these regulations include fee increases for migration, permanent residence, and temporary residence in line with Cabinet decisions, alongside minor technical and stylistic amendments to ensure clarity and consistency within the regulatory framework. The Migration Regulations (Amendment) Statutory Rules 1990 No. 320 were issued by the Minister for Immigration, Local Government and Ethnic Affairs, reflecting a policy objective to streamline and modernise the visa application process while accommodating specific needs of various nationalities, particularly those from Namibia and the PRC. The amendments are designed to ensure that the regulations remain relevant and effective in facilitating lawful migration to Australia, while also addressing administrative efficiencies and policy alignments with international developments.

Scope and Application

The Migration Regulations (Amendment) Statutory Rules 1990 No. 320 apply to various stakeholders including citizens of Namibia, People's Republic of China (PRC) citizens, and applicants for PRC (temporary) entry permits and visas in Australia. The regulations amend the Migration Regulations to enable Namibian citizens to lodge visa applications in South Africa, exempt PRC citizens from the requirement to produce a passport or valid travel document when applying for an entry permit while in Australia, and extend the operation of specific regulations until 31 December 1990. Furthermore, the regulations introduce a new PRC (temporary) visa with a $30 fee and allow for the refund of reconsideration fees if the reconsideration results in the grant of a visa or entry permit. The amendments also include minor technical and stylistic changes and increase fees for migration, permanent residence granted in Australia, and temporary residence in line with Cabinet decisions. The jurisdictional reach of these regulations is Commonwealth-wide, impacting migration processes and policies across Australia. The application of these regulations is governed by the Migration Act 1958, with specific authority granted under sections 23, 33, and 181 of the Act. The regulations extend their application through several amendments and insertions, such as enabling Namibian citizens to apply for visas in South Africa, exempting PRC citizens from producing travel documents when in Australia, and creating a new PRC (temporary) visa. Additionally, the regulations make minor technical and stylistic amendments to ensure clarity and consistency in the Migration Regulations. The retrospective application of certain amendments ensures that there is no discontinuity in the regulatory framework. While the primary focus is on amending and enhancing the migration process for specific groups, the overall objective is to streamline and modernise Australia's migration regulations.

Key Provisions

The key provisions of the Migration Regulations (Amendment) revolve around changes to the process and requirements for obtaining visas and entry permits, particularly for citizens of Namibia and the People’s Republic of China (PRC). Firstly, Regulation 4 permits citizens of Namibia to apply for visas in South Africa, aligning with Namibia's recent independence. Regulation 5 exempts PRC citizens from needing to produce a passport or valid travel document when applying for an entry permit within Australia, as long as they appear on the Department’s movement records. Regulation 7 extends the operation of certain provisions until 31 December 1990 to prevent procedural gaps. Regulation 8 allows the grant of a PRC (temporary) entry permit to the spouse or dependent child of a PRC citizen in Australia, while Regulation 9 creates a new PRC (temporary) visa with a $30 fee for re-entry. Regulation 22 enables a refund of the fee for reconsideration if the reconsideration results in a visa or entry permit being granted. The obligations imposed by these regulations include the need for Namibian citizens to apply for visas through South Africa, PRC citizens to rely on the Department’s movement records instead of passports for entry permit applications, and compliance with the extended operation periods to maintain policy continuity. Additionally, the new regulations require the application of a $30 fee for the PRC (temporary) visa unless the applicant is a spouse or dependent child of a PRC citizen in Australia, who are exempt from this fee. The provisions also mandate that any permissions for visas and entry permits must be given in writing, as outlined in Regulation 24. Failure to comply with these regulations can result in civil or criminal penalties, although the specific consequences are not detailed in the provided text. However, given the nature of migration legislation, breaches might lead to refusal of visa or entry permit applications, deportation, or other administrative actions. Fines or imprisonment could also be applicable, depending on the severity of the breach and the specific provisions violated. The exact penalties would be determined by the courts, in line with the broader Migration Act 1958.

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Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Commencement Provisions
Fees
Licensing & Registration
Regulatory Standards
Reporting & Disclosure Obligations
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