Migration Regulations (Amendment)

Legislation au C2004L05185 Regulations Not in force Legislative Instrument

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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.

In addition a technical amendment is made to refer to entry visas rather than visas.

Regulation 23 - Grant of temporary entry permit to holder of working holiday visa or entry permit or or prescribed temporary entry permit

This regulation amends regulation 121 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.

In addition a technical amendment is made to refer to entry visas rather than visas.

Regulation 24 - Grant of temporary entry permit to holder of certain student visa or entry permit or of prescribed temporary entry permit

This regulation amends regulation 122 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.

In addition a technical amendment is made to refer to entry visas rather than visas.

Regulation 25 - Grant of visitor or student entry permit to holder of certain student visa or entry permit or of prescribed temporary entry permit

This regulation amends regulation 123 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.

In addition a technical amendment is made to refer to entry visas rather than visas.


Regulation 26 - Holder of trainee (non-formal course), or trainee (English language), entry permit or prescribed temporary entry permit - temporary provisions

This regulation amends regulation 123A 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.

This regulation also amends regulation 123A to provide that applicants have to satisfy the criteria in relation to either a trainee (English language) visa or a trainee (non-formal) visa. This amendment is to correct an earlier omission.

In addition a technical amendment is made to refer to entry visas rather than visas.

Regulation 27 - 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 allow for the grant of a specified temporary entry permit to a person who holds the relevant “equivalent” visa granted under the law that existed before 19 December 1989.

Regulation 28 - Prescribed criteria for grant of temporary entry permit to lawful temporary resident or holder of prescribed temporary entry permit

This regulation amends regulation 125 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.

In addition a technical amendment is made to refer to entry visa rather than visas.

Regulation 29 - Extended Eligibility (spouse) entry permit

This regulation repeals and re-inserts regulation 126 or the Migration Regulations to

- correct a drafting error ie an illegal entrant as described in paragraphs 42(1C)(a), (b) or (c) are to benefit from regulation 126; as currently drafted they do not.


- ensure that the benefit conferred by regulation 126 operates from 19 December 1989.

Regulation 30 - Extended Eligibility (family) entry permit

This regulation amends regulation 127 of the Migration Regulations to enable the grant of an entry permit to a dependent child in Australia as a temporary resident, who is included in an application of a person who has applied to migrate to Australia and that person migrates to Australia, eg. a child is studying in Australia, and the parents migrate to Australia.

Regulation 31 - Compassionate grounds entry permit

This regulation makes a technical amendment to regulation 140 of the Migration Regulations to correct a drafting error.

Regulation 32 - Prescribed qualifications and prescribed number of points

This regulation makes a technical amendment to regulation 145 of the Migration Regulations to ensure that the prescribed numbers of points are appropriately linked to the relevant visa class.

Regulation 33 - Delegation

This regulation amends regulation 182B of the Migration Regulations to allow the Secretary to delegate his/her powers under the regulations. This is to remove any doubt as to the Secretary’s power to delegate.

Regulation 34 - Fee on application for temporary entry permit granted only in Australia

This regulation amends regulation 185 of the Migration Regulations to impose a fee on applications considered under regulation 123A, and also to exempt the holder of a private subsidised student entry visa or entry permit from payment of the fee.


Regulation 35 - Fee on application for certain permits

This regulation amends regulation 186 by adding a new subregulation as a consequence of an amendment to regulation 127. This amendment will exempt from the payment of a fee, a person who applies for an entry permit and who is already the holder of an extended eligibility (family) entry permit granted on the grounds that the holder is a dependent child temporarily in Australia of a person who migrates to Australia.

Regulation 36 - Fee on application for extended eligibility (family) entry permit

This regulation inserts a new regulation as a consequence of an amendment to regulation 127 to exempt from the payment of a fee, a person who applies for an extended eligibility (family) entry permit on the grounds of being a dependent child temporarily in Australia of a person who migrates to Australia. This amendment is retrospective to 19 December 1989, the date the Migration Regulations came into operation. The fee referred to in regulation 189A(b) was previously imposed under Schedule 8.

Regulation 37 - Fee on application for entry permit to be granted under regulation 35B

This regulation inserts a new regulation 196 to require the payment of a fee on lodgement of an application for the grant of an entry permit pursuant to regulation 35B. ie where a person requires further time to satisfy a condition of his/her specified entry permit, and that entry permit will expire before the condition is satisfied.

Regulation 38 - Schedule 2

This regulation adds another item to Part 2 of Schedule 2 as a consequence of the new soviet concession regulation.

Regulation 39 - Schedule 3

This regulation adds another item to Part 3 of Schedule 3 as a consequence of the new soviet concession regulation.

Regulation 40 - Schedule 8

This regulation is as a consequence of the amendment to regulation 189A. The fee for an application for an extended eligibility (family) entry permit will now be imposed under regulation 189A instead of schedule 8.

Overview

The Migration Regulations (Amendment) 1990 No. 75 was enacted to amend the existing Migration Regulations under the Migration Act 1958. The purpose of these amendments is to address various technical inaccuracies and disadvantages in the regulations, and to introduce a new visa class for citizens of the USSR who have been granted temporary asylum in Italy. The regulations were issued by the Minister of State for Immigration, Local Government and Ethnic Affairs to ensure the efficient and effective implementation of the Migration Act. The amendments also facilitate the delegation of certain powers by the Secretary of the Department and impose fees for specific applications. These changes are intended to streamline the visa application process, correct previous oversights, and provide for the unique circumstances of certain applicants, thereby ensuring the regulations remain relevant and fair. The regulations include a range of amendments to various sections, such as correcting inaccurate definitions, modifying visa application criteria, and adjusting the conditions under which certain visas can be granted or extended. Additionally, the amendments introduce a new Soviet concession visa class to accommodate the specific needs of USSR citizens who have received temporary asylum in Italy, enabling them to apply for permanent residency in Australia. The amendments are retrospective in nature, ensuring that they apply to situations that arose prior to the commencement of the regulations.

Scope and Application

The Migration Regulations (Amendment) 1990 No. 75 amends the Migration Regulations to implement technical corrections and address specific issues in the administration of migration matters under the Migration Act 1958. The regulations apply to various classes of visa and entry permits, impacting individuals and entities involved in migration processes, including applicants for different types of visas, the Department of Immigration, Local Government and Ethnic Affairs, and other relevant stakeholders. The amendments are retrospective to ensure consistency and fairness in the application of the regulations. Certain exclusions and exemptions apply, particularly in relation to fees for specific entry permit applications, and the regulations clarify and refine the conditions and criteria for the grant and operation of visas and entry permits. The scope of the Act extends to Commonwealth jurisdiction, governing migration matters across Australia. The amendments are authorised under sections 23, 33, and 181 of the Migration Act 1958, and certain powers may be further extended or restricted through subordinate instruments.

Key Provisions

The primary sections of the Migration Regulations (Amendment) 1990 No. 75 provide a series of technical amendments and new provisions aimed at enhancing the clarity, efficiency, and fairness of the migration regulatory framework in Australia. For example, Regulation 4 corrects inaccuracies in the existing regulations and removes disadvantages that inadvertently affected individuals (Regulation 4). Regulation 17 introduces a new class of visa for citizens of the USSR who have been granted temporary asylum in Italy, facilitating their entry as permanent residents (Regulation 17). Regulation 33 allows the Secretary of the Department to delegate certain powers under the regulations, ensuring operational flexibility (Regulation 33). The obligations imposed by these regulations primarily concern the clarification and correction of existing provisions to ensure they operate as intended. For instance, Regulation 6 removes a condition that restricted the arrival of visa holders before a specified person, thereby allowing more flexibility in visa operations (Regulation 6). Regulation 16 allows non-dependent children of approved business migrants to also be approved if they are essential to the business (Regulation 16). Furthermore, Regulation 32 ensures that the prescribed number of points for visa applications aligns with the relevant visa class, thereby maintaining consistency and fairness in the application process (Regulation 32). In terms of consequences for non-compliance, the regulations themselves do not explicitly outline criminal or civil penalties for breaches. However, the underlying Migration Act 1958 provides a framework where breaches of migration laws can lead to penalties. For instance, unauthorised entry into Australia can result in criminal charges, and failure to comply with visa conditions can lead to visa cancellation, deportation, and bans from re-entry (Migration Act 1958, sections 116 and 120). Additionally, providing false information in a visa application can result in fines or imprisonment under section 246D of the Act. These provisions underscore the seriousness with which the Australian government treats breaches of migration laws.

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