Migration Regulations (Amendment)

Legislation au C2004L05193 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 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.

 

Authority:

Sections 23, 33, 181 of the Migration Act 1958

 

 

Cabinet Minute No. 13697 of 7 May 1990

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.

Overview

The Migration Regulations (Amendment) C2004L05193, enacted in 1990, was introduced to amend the Migration Regulations and address several technical, stylistic, and policy-based issues within the existing framework of the Migration Act 1958. This amendment was made by the Minister for Local Government on behalf of the Minister for Immigration, Local Government, and Ethnic Affairs, and was driven by the need to refine and update the regulatory provisions to better align with contemporary policy objectives and address inadvertent oversights in the initial drafting process. The primary policy objective of these amendments was to ensure that the regulations more accurately reflected the intended policies, provided clarity in definitions, and enabled a more flexible and inclusive approach to visa sponsorships and application processes. These amendments encompassed a variety of changes, including the incorporation of customary adoptions into the definition of "adopted", the allowance for individuals over 18 to sponsor certain dependents under 18, the correction of misinterpretations in definitions such as "remaining relative", and the provision for alternative travel documents in visa applications. Additionally, the amendments introduced measures to ensure that applicants for independent executive visas transfer assets to Australia rather than merely having them available for transfer, and exempted amateur sportspeople from certain visa fees. These changes collectively aimed to enhance the functionality and fairness of the migration regulatory framework.

Scope and Application

The Migration Regulations (Amendment) aims to make technical and stylistic amendments to the Migration Regulations to align them with the current policy and legislative intent of the Migration Act 1958. The amendments apply to individuals and entities involved in migration processes, including visa applicants, sponsors, and those administering the visa system. The scope of these amendments is national, applying throughout Australia under the authority granted by sections 23, 33, and 181 of the Migration Act 1958. These amendments clarify definitions, update criteria, and provide for certain exceptions, such as exempting amateur sportspeople from paying a visa application fee. The Regulations do not introduce new exclusions or thresholds but ensure the interpretation of existing provisions aligns with past policies and legislative intent, particularly concerning definitions of "adopted" and "remaining relative." The amendments also address operational and administrative corrections, such as updating cross-references and extending the operation of certain provisions until new policies are implemented.

Key Provisions

The Migration Regulations (Amendment) seeks to make a number of technical and stylistic amendments to the Migration Regulations. Firstly, section 2A inserts a new interpretation of "adopted" to include customary adoptions (reg. 2A), while section 9 amends the interpretation of "remaining relative" to reflect policy prior to 19 December 1989 (reg. 9). Section 22 permits a person to produce a valid travel document instead of a passport when applying for an entry permit while in Australia (reg. 22). Section 69 requires an applicant for an independent executive visa to transfer assets of a prescribed value to Australia rather than simply having them available for transfer (reg. 69). Section 123A extends the operation of the regulation concerning temporary provisions for trainees until 31 December 1990 (reg. 123A). Lastly, section 183A exempts amateur sportspersons and those assisting them from payment of the $30 application fee for a sport visa (reg. 183A). The amendments impose several obligations on the parties and entities governed by the Migration Act 1958. For instance, the new definition of "adopted" (reg. 2A) requires that the sponsor be 18 years or older and able to provide evidence of the customary adoption. The regulation concerning remaining relatives (reg. 9) requires that the applicant provide evidence of support from relatives in their country of residence. The provision allowing the production of a valid travel document (reg. 22) requires that the document be valid and acceptable for the purpose of migration. The requirement to transfer assets for an independent executive visa (reg. 69) requires that the applicant provide evidence of the transfer of assets to Australia. The extension of the operation of regulation 123A (reg. 123A) requires that the temporary provisions for trainees be extended until 31 December 1990. Lastly, the exemption from the sport visa fee (reg. 183A) requires that the applicant provide evidence of their status as an amateur sportsperson or assistant. The Migration Regulations (Amendment) also includes provisions for offences, penalties, and civil/criminal consequences for breach. While the explanatory statement does not provide specific details on penalties, it is likely that breaches of the regulations could result in civil or criminal penalties under the Migration Act 1958. For instance, providing false or misleading information in an application for a visa or entry permit could result in a fine of up to $22,200 or imprisonment for up to two years, or both (s. 231). Similarly, contravening a condition of a visa or entry permit could result in a fine of up to $22,200 or imprisonment for up to two years, or both (s. 134). It is important to note that these penalties are not specific to the Migration Regulations (Amendment) and could apply to any breach of the Migration Act 1958.

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Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Licensing & Registration
Fees
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