Migration Regulations (Amendment) - Legislation

EXPLANATORY STATEMENT

Subject: Migration Act 1958

Migration Regulations (Amendment)

1990 No. 75

Section 181 of the Migration Act 1958 (the Act) provides the power in so far as is relevant to prescribe matters which are required by the Act and which are necessary or convenient to be prescribed for the carrying out or giving effect to the Act, and in particular making provision for and in relation to the charging and recovery of fees.

In addition, regulations are prescribed under the following powers:

- sections 23 and 33 of the Act provide that without limiting the generality of section 181, the regulations may provide for inter alia different classes of visa and entry permits respectively.

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

- make a number of technical amendments which either:

(a) correct inaccuracies in the regulations; or

(b) remove disadvantages caused to individuals who were intended to be covered by the regulations. These amendments are necessarily retrospective.

- create a new class of visa (and corresponding entry permit) to facilitate entry as a permanent resident by a citizen of the USSR who, inter alia has been granted temporary asylum in Italy.

- provide a power of delegation by the Secretary of the Department of his or her powers under the Regulations.

Details of the regulations are set out in the Attachment.

Authority: Sections 23 33 and 181 of the Migration Act 1988

Issued by the Minister of State

for Immigration, Local Government

and Ethnic Affairs

ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Commencement

This regulation provides that regulations 2, 10, 12, 13, 16, 22, 23, 24, 25, 27, 28, 29, 30 are to have commenced on 19 December 1989.

This regulation also provides that regulations 21, 30(a) are to have commenced on 15 January 1990.

This regulation also provides that regulations 8, 9, 15, 20, 26 are to have commenced on 20 February 1990.

Regulation 2 - Interpretation

This regulation makes a technical amendment to include a definition of a “prescribed temporary entry permit”.

Regulation 3 - Interpretation

This regulation makes technical amendments to a number of definitions in regulation 2 of the Migration Regulations.

Regulation 4 - Grant of Visas

This regulation amends regulation 13 of the Migration Regulations to correct the restriction that specified visas are only to be granted as entry visas having effect as permanent entry permits or as temporary entry permits. The amendment allows for visas other than entry visas to be granted.

This regulation also makes a consequential amendment from the new soviet concession regulation.

Regulation 5 - Exempt Visas

This regulation makes a technical amendment to regulation 14A of the Migration Regulations.

Regulation 6 - Effect and Operation of Visas

This regulation amends regulation 16 of the Migration Regulations by removing from the terminating conditions, the condition that the holder is not to arrive in Australia or to enter Australia before the arrival or entry of a specified person.

Regulation 7 - Conditions in connection with grant of visas

This regulation makes a technical amendment to regulation 17 of the Migration Regulations.

Regulation 8 - Certain applications made before 1 June 1990 to be taken to be applications for processing entry permit

This regulation makes a technical amendment to regulation 22A to ensure that the specified application is also an application for a processing entry permit.

Regulation 9 - Certain applications by PRC citizens to be taken to be applications for entry permits

This regulation inserts a new regulation 22B to provide that an application from a citizen of the People’s Republic of China for a humanitarian grounds entry permit is also to be an application for a PRC citizen (permanent) entry permit. This will mean that these people do not have to lodge a further application and pay the appropriate fee.

This regulation also provides that an application from a citizen of the People’s Republic of China for either an extended eligibility (other) entry permit or an extended eligibility (limited) entry permit is also to be either an application for an extended eligibility (PRC) entry permit or a PRC citizen entry permit whichever is applicable.

Regulation 10 - Recording and Evidencing of entry permits

This regulation amends regulation 26 of the Migration Regulations to distinguish between temporary entry permits and permanent entry permits in relation to the recording of entry permits issued by a computerised system. This distinction is necessary to provide for operational flexibility and improved efficiency.

Regulation 11 - Extension of time to satisfy requirement or condition

This regulation makes an amendment in relation to border entry permits, to restrict applications for the grant of a further border entry permit to dependent children or persons evacuated to Australia where a condition needs to be satisfied.

Regulation 12 - Extension of time to satisfy requirement or condition

This regulation amends regulation 35B to include entry permits which were granted under the transitional provisions of the Migration Legislation Amendment Act 1989 and which were subject to a condition that could only be satisfied after entry.

Regulation 13 - Restrictions on re-entry

This regulation amends regulation 36 of the Migration Regulations in relation to paragraph 36(1)(e) to remove any doubt as to when a person is to have been found by the Department to have breached a condition of their temporary entry permit. In addition this regulation redrafts subregulation 36(1) to make it easier to read.

Regulation 14 - Prescribed criteria - classes of entry permits

In addition, regulation 42 is amended to provide that the criteria in subregulation 42(1A) does not apply to a person who has been granted refugee status or territorial asylum. This was originally subregulation 25(2) which was repealed on 20 February 1990 and was omitted in the previous amendments.

Regulation 15 - Prescribed criteria - classes of entry permits

This regulation amends regulation 42 by including as a prescribed applicant, and therefore not subject to the 12 month rule on lodging an application after becoming an illegal entrant, an applicant who arrived on or after the commencement of the regulations as the holder of a prospective marriage visa but subsequently became an illegal entrant. This amendment will allow such people to “regularise” their status.

Regulation 16 - Business (general) visa and Business (joint venture) visa

This regulation amends regulation 47 of the Migration Regulations to enable non-dependent children of a person who is being approved as a business migrant to be approved as business migrants where they are an essential part of the business in question.

This regulation amends regulation 48 of the Migration Regulations to enable non-dependent children of a person who is being approved as a business migrant to be approved as business migrants where they are an essential part of the business in question.

Regulation 17 - Soviet concession visa

This regulation inserts a new regulation 107A for a new visa class where the applicant is a citizen of the USSR and inter alia, has been granted temporary asylum in Italy. Applications for such a visa must be lodged before 1 June 1990.

Regulation 18 - Border visa

This regulation amends regulation 111 of the Migration Regulations as a consequence of the amendment made to regulation 16 to remove the condition from being a terminating condition.

Regulation 19 - Grant of visa to enable re-entry to Australia

This regulation makes a technical amendment to regulation 115 to remove the inconsistency between paragraphs 115(1)(a)(i) and (1)(c)(iii).

Regulation 20 - Extended Eligibility (PRC) entry permit

This regulation amends regulation 119D of the Migration regulations to remove any ambiguity that the entry permit was granted subsequent to 20 June 1989.

Regulation 21 - PRC citizen entry permit

This regulation makes a technical amendment to regulation 119E by replacing “illegal entrant” with “prohibited non-citizen” as an illegal entrant did not exist at law before 19 December 1989.

Regulation 22 - Grant of temporary entry permit (other than working holiday entry permit) to holder of visitor visa, visitor entry permit or prescribed temporary entry permit

This regulation amends regulation 120 of the Migration Regulations to allow for the grant of a specified temporary entry permit to a person who holds the relevant “equivalent” entry permit granted under the law that existed before 19 December 1989.