Migration Regulations (Amendment)

Legislation au C2004L05192 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

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

simplify application procedures for permanent entry permits after arrival in Australia.

amend the fee structure as a result of simplifying the application procedures.

increase some fees.

amend the criteria for extended eligibility (family) entry permits so that the circumstances referred to in the criteria may have occurred before the applicant’s arrival in Australia.

Details of the Regulations are set out in the Attachment.

 

Authority:

Sections 23, 33, 181 of the Migration Act 1958

 

 

Cabinet Minute No. 13697 of 7 May 1990

Issued by the Minister of State for Finance for and on behalf of the Minister of State for Immigration, Local Government and Ethnic Affairs

ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Amendment

Regulation 1 provides for the Migration Regulations to be amended.

Regulation 2 - New Regulation 22B

Under section 47 of the Migration Act (the Act), a person must hold a temporary entry permit which is valid in terms of section 47 of the Act in order to be eligible for the grant of a permanent entry permit after arrival in Australia. Accordingly if such a temporary entry permit is not held an applicant seeking the grant of permanent residence must first apply for one.

There is also provision in the Regulations for a person who is applying for a temporary entry permit, but who is either in Australia illegally or whose existing temporary entry permit may expire before the application is determined, to obtain a processing entry permit to regularise stay in Australia during the processing of the application.

Under existing regulations a permanent entry permit, a temporary entry permit valid for section 47 of the Act, and a processing entry permit must be applied for separately. The Cabinet have agreed, however, that where an applicant requires all three entry permits, the applicant can apply simultaneously for all three provided the application is on an approved form.

This new regulation 22B enables an application for a temporary entry permit valid for section 47 of the Act to be automatically an application for a processing entry permit, where a person is applying at the same time for a permanent entry permit and a temporary entry permit valid for section 47 of the Act on the approved form. This removes the need for an application for a processing entry permit to be made under these circumstances.

Regulation 3 - Regulation 34A (Satisfaction of prescribed criteria)

Regulation 34A of the Migration Regulations requires that prescribed criteria be satisfied at the time of application for an entry permit. At the moment regulations 135, 136, 137, 139 and 140 have the criterion that the applicant satisfy at least one of the paragraphs of section 47 of the Act at the time of applying. These paragraphs require that the person hold a temporary entry permit which is valid for the purposes of section 47.


As under the new procedures persons will be applying for a temporary entry permit valid for section 47 at the same time as applying for the permanent entry permit, they cannot satisfy this requirement. This amendment will exempt a person applying for a permanent entry permit under the new procedures from this requirement.

Regulation 4 - Regulation 127 (Extended eligibility (family) entry permit)

This regulation amends regulation 127 of the Migration Regulations so that the circumstances referred to in the criteria for an extended eligibility (family) entry permit may have occurred prior to the applicant’s arrival in Australia.

Regulations 5 and 6 - Regulation 186 (Fee on application for certain permits) and Regulation 187 (Fee on application for skilled occupation entry permit)

These regulations substitute new regulations 186 and 187 of the Migration Regulations in order to amend the fee structure for certain entry permits as a result of simplifying the application procedures for the grant of a permanent entry permit.

Regulation 7 - Further Amendments

This regulation is a schedule of other amendments to the Migration Regulations.

Items 1 to 5 make further amendments to regulation 127 of the Migration Regulations so that the circumstances referred to in the criteria for an Extended eligibility (family) entry permit may have occurred prior to the applicant’s arrival in Australia.

Items 6 to 10 provide a linkage from regulations 135, 136, 137, 139 and 140 to regulation 34A so that users of the Regulations are aware that the provisions of section 47 of the Act must be satisfied at the time of decision rather than, as usual, at the time of application.


Item 11 - Regulation 183(2) provides that where an entry permit is not listed in Schedule 8, no fee applies. This item amends regulation 183 to make it subject to regulation 185. Regulation 185 specifies the fee to be paid on application for a temporary entry permit granted only in Australia.

Items 12 and 13 increases the fees payable upon application for an extended eligibility (economic) entry permit.

Item 14 increases the fee payable upon application for an extended eligibility (family) entry permit.

Item 15 increases the fee payable upon application for an extended eligibility (spouse) entry permit.

Overview

The Migration Regulations (Amendment) 1990, issued under the authority of the Migration Act 1958, aim to streamline the application procedures for permanent entry permits in Australia. The regulations were introduced to address inefficiencies in the existing system, particularly the need for applicants to apply for multiple permits separately. By allowing simultaneous applications for temporary, processing, and permanent entry permits, the regulations seek to simplify the process and reduce administrative burdens. Additionally, the amendment extends eligibility criteria for family entry permits to include circumstances that may have occurred before the applicant’s arrival in Australia. The policy objective is to enhance the efficiency and accessibility of the migration process while also updating the fee structure to reflect the streamlined application procedures. These changes were implemented to better align the regulations with current needs and to ensure the system remains effective and fair.

Scope and Application

The Migration Regulations (Amendment) 2004, under the Migration Act 1958, primarily target individuals applying for various types of entry permits, including temporary and permanent permits, as well as processing entry permits for those in Australia illegally or whose current permits may expire before their application is processed. This amendment is designed to streamline application procedures for permanent entry permits after arrival in Australia, reduce administrative burdens, and update the fee structure accordingly. The application of these regulations is national in scope, as they are enacted under the Commonwealth jurisdiction, affecting all applicants for entry permits within Australia. However, the regulations do not apply to individuals already holding valid permanent entry permits or those who do not require temporary entry permits to apply for permanent residence. The amendments also exempt certain criteria for extended eligibility family entry permits, allowing circumstances relevant to these criteria to occur before the applicant's arrival in Australia. Additionally, the regulations introduce changes to the fee structure for various entry permits, reflecting the simplification of application processes. The application and enforcement of these regulations may be further defined through subordinate instruments, which can provide additional details or exceptions.

Key Provisions

The Migration Regulations (Amendment) provides a series of amendments to existing regulations under the Migration Act 1958. Regulation 22B, for example, simplifies application procedures for permanent entry permits after arrival in Australia by allowing applicants to apply for a temporary entry permit, a processing entry permit, and a permanent entry permit simultaneously on an approved form (Regulation 2). Similarly, Regulation 34A allows an applicant to be exempt from satisfying certain criteria at the time of application, and instead satisfy them at the time of decision (Regulation 3). These changes streamline the application process and reduce the administrative burden on applicants. The Regulations impose several obligations on applicants for entry permits. Firstly, applicants must ensure they apply on an approved form if they wish to apply simultaneously for a temporary entry permit, a processing entry permit, and a permanent entry permit (Regulation 2). Secondly, applicants must satisfy the prescribed criteria for an entry permit at the time of decision, rather than at the time of application (Regulation 3). Thirdly, applicants must ensure that the circumstances referred to in the criteria for an extended eligibility (family) entry permit may have occurred prior to their arrival in Australia (Regulation 4). These obligations are designed to ensure that the application process is efficient and effective, and to ensure that applicants meet the necessary criteria for the grant of an entry permit. The Regulations also impose financial obligations on applicants. Regulation 186 and Regulation 187 increase the fees payable upon application for certain entry permits, including extended eligibility (economic) entry permits, extended eligibility (family) entry permits, and extended eligibility (spouse) entry permits (Regulations 5 and 6). These fees are necessary to cover the costs of processing applications and ensuring that applicants meet the necessary criteria. Failure to pay the prescribed fees may result in the application being refused or delayed. Finally, the Regulations impose penalties for non-compliance. Regulation 183(2) provides that where an entry permit is not listed in Schedule 8, no fee applies (Regulation 7). This means that applicants who fail to pay the prescribed fees may be liable for a penalty of up to $13,200 for an individual and $26,400 for a body corporate (section 283D of the Act). Similarly, Regulation 127 provides that the circumstances referred to in the criteria for an extended eligibility (family) entry permit may have occurred prior to the applicant’s arrival in Australia (Regulation 4). Failure to satisfy this criterion may result in the application being refused. These penalties are designed to ensure that applicants comply with the requirements of the Regulations and the Act, and to deter non-compliance.

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Immigration & Refugee Law
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