Migration Regulations (Amendment)

Overview

The Migration Regulations (Amendment) Statutory Rules No. 47 of 1989, issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs, aimed to address the evolving needs of Australia's immigration policies, particularly in the context of financial support requirements for visa applicants. The amendments to the Migration Regulations were enacted to align with changes in the Social Security Act 1947 and to broaden the definition of support as recommended by the Committee to Advise on Australia's Immigration Policies (CAAIP). By amending the definition of support to include unemployment benefits and correcting a grammatical error, the amendments sought to ensure that the assurance of support provisions remained relevant and enforceable. The overarching policy objective was to enhance the administration of the migration assurance of support scheme by making it more comprehensive and legally consistent with other legislative changes.

Scope and Application

The Migration Regulations (Amendment) Statutory Rules No. 47 of 1989 apply to the Migration Regulations, which are subordinate legislation made under the Migration Act 1958. These regulations primarily affect individuals who are seeking to enter or remain in Australia and require an assurance of support. This assurance ensures that the person has the necessary financial support to avoid becoming a public charge. The amendments extend to anyone who is required to provide an assurance of support under the regulations, which includes both prospective immigrants and those already in the country seeking to extend their stay. The amendments also apply to the Commonwealth, as it pertains to the recovery of debts related to assurance of support. The jurisdictional reach of these regulations is national, as they are made under a Commonwealth Act and apply across Australia. There are no stated exclusions or exemptions in these particular amendments; however, the scope of the assurance of support requirement is expanded to include certain unemployment benefits, aligning with broader social security policy changes. The amendments also clarify the legal framework for debt recovery related to assurance of support, making it consistent with recent changes to the Social Security Act.

Key Provisions

The main operative sections of the amending regulations under the Migration Act 1958, as outlined in Statutory Rules No. 47 of 1989, involve significant changes to the definition and enforcement of assurances of support for individuals seeking to enter or remain in Australia. Regulation 21 now allows the Minister to require an assurance of support for such individuals (Regulation 21). The definition of "support" in paragraph 20(1)(c) of the Regulations has been expanded to include the receipt of unemployment benefits paid under section 116 of the Social Security Act 1947, in response to the recommendations of the Committee to Advise on Australia’s Immigration Policies (CAAIP) (Regulation 20(1)(c)(i)). Furthermore, the reference to "Division 6 of Part VII" of the Social Security Act 1947 has been corrected to "Division 6 of Part XIII" to align with the amendments made to the Social Security Act by the Social Security Legislation Amendment Act 1988 (Regulation 20(1)(c)(ii)). Additionally, the regulations address the recovery of debts incurred when the Commonwealth provides support to an individual, stipulating that such debts are payable to the Commonwealth and may be pursued in a court of competent jurisdiction (Regulations 22(1) and (2)). The repealed subregulation 22(3) removed the Minister’s power to write off these debts, which is now governed by the Social Security Act (Regulation 22(3)). These amendments impose several obligations on the parties involved. The Minister now has expanded authority to require assurances of support from individuals seeking to enter or remain in Australia, which must now include consideration of unemployment benefits as part of the support assessment (Regulation 20(1)(c)(i)). Persons providing assurance of support are required to ensure that the support provided aligns with the updated definition, and they must be aware that any funds expended by the Commonwealth for the individual’s support are a debt owed to the Commonwealth (Regulation 22(1)). The technical amendment in subregulation 5(5) rectifies a grammatical error, ensuring clarity and proper enforcement of the regulations (Regulation 5(5)). For breaches of these provisions, the regulations impose various consequences. Any debts owed to the Commonwealth due to provided support must be repaid, and failure to do so may result in legal action to recover the debt in a court of competent jurisdiction (Regulations 22(1) and (2)). Although the power to write off debts has been removed, other legal actions and penalties may still apply under the overarching Migration Act and other relevant legislation. The precise nature and extent of penalties for non-compliance with these provisions are not detailed within the amending regulations but would typically fall under the general enforcement mechanisms of the Migration Act 1958.