Migration Regulations (Amendment) 1991 No. 226
EXPLANATORY STATEMENT STATUTORY RULES 1991 No. 226
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.
Statutory Rules No 201 of 1991 were made by the Governor-General at the Executive Council meeting of 27 June 1991. However, a non-final draft of the Regulations was submitted in error to the meeting. The Regulations replace the provisions in Statutory Rules No 201 with the amendments that were intended to be made.
Details of the Regulations are: Regulation 1 - Amendment
Regulation 1 provides for the Migration Regulations to be amended. Regulation - Regulation 17 (Conditions in connection with grant of visa)
Regulation 17 was amended in error by Statutory Rules No 201 of 1991 to provide, among other things, decision-makers with a discretion to prevent an extension of stay in Australia on the part of certain visitors. This amendment removes that discretion.
Regulations 3, 4, 5, 6 and 7 - Regulation 88 Business visitor visa); Regulation 89 (Close family visitor visa): Regulation 91 Tourist visa);
Regulation 92 (Tourist (special arrangements) visa); Regulation 93 (Visitor (other visa)
These regulations were amended in Statutory Rules No 201 of 1991 to provide that, where an applicant for a visitor or tourist visa has the characteristics of a class of persons shown by statistics to have remained in Australia after the period they were authorised to remain, the likelihood of that person overstaying in Australia was to be based on the applicant's circumstances in the applicant's country of usual residence. The proposed regulations provide for these circumstances to be simply a factor in determining the likelihood of overstay, and that such circumstances are to be weighed up against any other general considerations relevant to the individual's application.
Authority: Sections 23, 33, 181 of the Migration Act 1958
Issued by the Minister for Immigration, Local Government and Ethnic Affairs
Overview
The Migration Regulations (Amendment) 1991 No. 226 was introduced to correct an error in the Migration Regulations made in Statutory Rules No. 201 of 1991. This amending instrument was enacted to ensure that the original intent of the Migration Regulations was accurately reflected, particularly concerning the discretion of decision-makers to prevent extensions of stay for certain visitors and the criteria for assessing the likelihood of visa overstay. The problem it addressed was the inadvertent introduction of incorrect regulatory provisions that potentially impacted the assessment and processing of visa applications. Enacted by the Minister for Immigration, Local Government and Ethnic Affairs, the objective of these amendments was to rectify the errors and maintain the integrity of the visa application process as intended by the Migration Act 1958.
Scope and Application
The Migration Regulations (Amendment) 1991 No. 226 amends the Migration Regulations under the Migration Act 1958, correcting errors made in a previous set of statutory rules issued earlier in 1991. The Act applies to the Commonwealth of Australia and concerns the regulation of migration and the issuance of visas and entry permits, encompassing a wide array of persons, entities, and transactions related to immigration. The Regulations specifically address the criteria for granting certain visitor and tourist visas, modifying the decision-making process to ensure a more balanced consideration of factors contributing to the likelihood of overstay. These regulations aim to restore the original intent of the provisions, removing any discretionary powers that were erroneously included in the earlier rules. The amendments pertain to the assessment of visa applicants, ensuring that their circumstances in their country of usual residence are considered as one factor among others, rather than the sole determinant of their likelihood to overstay in Australia. The jurisdictional reach of these Regulations is national, applying across the entirety of Australia. There are no specific exclusions or exemptions stated in the text, and the scope of the Regulations is defined by the specific visa categories they amend. The application of the Act may be further detailed or refined through subordinate instruments, which would extend or restrict its application as necessary.
Key Provisions
The key provisions of these amendments to the Migration Regulations primarily concern the correction of an error made in Statutory Rules No 201 of 1991, which was subsequently rectified by Statutory Rules No 226 of 1991. Regulation 17 (Conditions in connection with grant of visa) was amended to remove a discretionary power granted to decision-makers that allowed them to prevent an extension of stay for certain visitors (Reg. 1). Additionally, the amendments to Regulations 3, 4, 5, 6, and 7 (which pertain to the Business visitor visa, Close family visitor visa, Tourist visa, Tourist (special arrangements) visa, and Visitor (other visa)) correct the interpretation of statistics regarding overstaying visitors. These regulations now require that an applicant's circumstances in their country of usual residence be considered as a factor, rather than the sole determinant, in assessing the likelihood of overstaying (Regs. 3–7).
These amendments impose specific obligations on decision-makers within the Department of Immigration. Firstly, they must no longer exercise the discretion to prevent extensions of stay for certain visitors as mistakenly allowed by the previous regulations (Reg. 1). Secondly, they must weigh the characteristics of a visitor's country of usual residence as one factor among others when determining the likelihood of overstaying, rather than making this the primary consideration (Regs. 3–7). This change ensures that decision-makers take a more holistic approach to each visa application, considering all relevant factors instead of relying solely on statistical data.
Failure to comply with these regulations may result in legal consequences for decision-makers and applicants alike. While the specific offences and penalties are not detailed in the explanatory statement, breaches of the Migration Regulations could lead to administrative penalties, judicial review, or other legal actions. The precise penalties for non-compliance would depend on the nature and severity of the breach, as outlined in other sections of the Migration Act 1958. For applicants, incorrect application of these regulations could result in visa refusals or revocations, which could have significant personal and legal repercussions.
Overall, these amendments aim to correct a previous error and provide clearer guidelines for decision-makers in assessing visa applications. By ensuring that all relevant factors are considered and not solely relying on statistical data, the regulations promote a more equitable and thorough evaluation process. This approach helps maintain the integrity of Australia's immigration system while facilitating the legitimate movement of visitors into the country.