Migration Regulations (Amendment)

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 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

make a number of technical and stylistic amendments.

amend the definition of “adopted” to include customary adoptions.

enable, in certain circumstances, a person to be a sponsor on behalf of a person under 18.

amend the interpretation of “remaining relative” to reflect policy prior to 19 December 1989.

enable a person to produce a valid travel document instead of a passport when applying for an entry permit when in Australia where the person no longer has that passport.

provide that an applicant for an independent executive visa transfers assets of a prescribed value to Australia rather than simply having them available for transfer.

provide for amateur sports persons not to have to pay a fee if they are entering Australia to compete in amateur events.

Details of the Regulations are set out in the Attachment.

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

ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

1   -   Amendment

Regulation 1 provides for the Migration Regulations to be amended.

2   -   Regulation 2 (Interpretation)

Paragraph 2.1 omits the definition of “adopted” in the Migration Regulations. A new definition is inserted in a new regulation 2A (see regulation 3 below).

Paragraph 2.2 makes a technical amendment to the definition of “student visa” to correct a typographical error.

3   -   New regulation 2A (Interpretation - adopted)

This regulation inserts a new regulation 2A into the Migration Regulations with a new interpretation of “adopted”. This amendment enables the interpretation of adoption to include adoption made on the basis of customary arrangements. This was proposed by the Joint Standing Committee on Migration.

4   -   Regulation 9 (Interpretation - remaining relative)

This regulation replaces the interpretation of “remaining relative” in regulation 9 to correct an unintended interpretation by means of which an applicant could, in effect, base a claim for migration on the absence of family support overseas, despite having relatives in his or her normal country of residence. The amended regulation reflects the policy prior to 19 December 1989, the date on which the Regulations came into operation.

5   -   Regulation 22 (Application for entry permit)

Paragraph 5.1 makes a technical amendment to regulation 22 to correct a typographical error.

Paragraph 5.2 amends regulation 22 of the Migration Regulations to make provision for persons who have lost their passports or had them stolen, and for stowaways.

Currently a person in Australia who applies for an entry permit has to produce the passport he or she used for entry to Australia. This amendment provides that as an alternative to this a person can produce a valid travel document.

6   -   Regulation 42 (Prescribed criteria - classes of visas)

This regulation amends regulation 42(3) as its operation should extend to all entry permits in Schedule 3 and not just those in Part 1 of Schedule 3.

7   -   Regulation 69 (Independent executive visa)

Currently an applicant for an independent executive visa must establish that he or she has personal assets to a prescribed value available for transfer to Australia. Paragraph 7.1 amends regulation 69 of the Migration Regulations to require that those assets are actually lodged in Australia rather than simply available for transfer.

Paragraph 7.2 amends regulation 69 of the Migration Regulations by adding a requirement that the Minister be satisfied that an applicant for an independent executive visa has a successful business record.

8   -   Regulation 123A (Holder of trainee (non-formal course), or trainee (English language), entry permit or prescribed temporary entry permit - temporary provisions)

This regulation extends the operation of regulation 123A of the Migration Regulations until 31 December 1990.

Regulation 123A contained a “sunset date” in the expectation that a new student policy would be introduced. As this new policy will not be introduced until 1 January 1991, regulation 123A has had to be extended.

9   -   Regulation 146 (Qualification - suitability for employment)

This regulation makes a technical amendment to regulation 146 of the Migration Regulations to correct a cross-reference that was made in error.

10    -   Regulation 180 (Prescribed matters - subsection 63(1) of the Act)

Regulation 180 of the Migration Regulations sets out the prescribed matters to be considered by the Minister before revoking a deportation order under subsection 63(1) of the Migration Act.

This regulation amends regulation 180 of the Migration Regulations to include in the prescribed matters, whether the person has applied for reconsideration of a decision under regulation 173A of the Migration Regulations or review of a decision under regulation 21 of the Migration (Review) Regulations and whether, the reconsideration or review having been decided in favour of the person, the Minister intends to grant an entry permit to the person.

11   -   New regulation 183A (Fee on application for a sport visa)

This regulation inserts a new regulation 183A into the Migration Regulations to exempt amateur sportspersons and persons assisting them from payment of the $30 application fee for a sport visa.

12   -   Regulation 185 (Fee on application for temporary entry permit granted only in Australia)

This regulation makes a purely stylistic amendment to regulation 185 which makes subregulations (7) and (7A) clearer.

13   -   Schedule 1 (Criteria and representative symbols)

This regulation amends Schedule 1 of the Migration Regulations to cover the addition of Part 4 of Schedule 2 by paragraph 14.1 of these Regulations.

14   -   Schedule 2 (Classes of visas, prescribed criteria and code numbers)

This regulation adds a new Part 4 to Schedule 2 of the Migration Regulations so that in certain circumstances a person 18 years or over can be a sponsor on behalf of a person under 18 (for example, a 17 year old who wishes a spouse to be sponsored from overseas). Part 4 of Schedule 2 provides which class of person may sponsor on behalf of a person under 18 when the person being sponsored is an applicant for a spouse, prospective marriage or parent visa.

This amendment includes in the Migration Regulations a policy which operated before 19 December 1989, the date on which relevant regulations came into operation, but which was unintentionally omitted in the process of drafting those regulations.

15   -   Schedule 8 (Fees)

This regulation makes a technical amendment to item 35 of Part 1 of Schedule 8 as a consequence of the insertion of new regulation 183A into the Migration Regulations by regulation 11 of these Regulations.