EXPLANATORY STATEMENT
Subject; Migration Act 1958
Migration Regulations (Amendment)
STATUTORY RULES 1990 NO. 237
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 proposed regulations is to amend the Migration Regulations to:
make a number of technical amendments to correct inaccuracies in the regulations; and
make a number of technical amendments consequential upon other amendments.
delete provisions relating to citizens of the PRC and replace them with new provisions to enable grant of a PRC (temporary) entry permit to citizens of the PRC who were present in Australia on 20 June 1989.
enable the grant of a further entry permit to domestic workers (diplomatic or consular).
enable the grant of a further entry permit to the holder of a student (restricted) entry permit.
make alterations to the “points test”.
repeal regulations which provide existing arrangements for access to permanent residence on refugee and humanitarian grounds to make way for new temporary entry arrangements approved by the Government.
provide for the grant of 4-years temporary residence to persons who have been granted refugee status.
provide for the grant of permanent residence to persons who have been granted refugee status where such a grant is in the national interest.
A number of the amendments have been made retrospectively. The majority - paragraphs 2(a) and (c), regulations 8 and 11, paragraphs 13(c) and 14(a) and (b), regulations 15, 16, 17 and 34, paragraphs 36(a) and (b), to commence on 19 December 1989; paragraphs 2(e) and 14(c) to commence on 26 March 1990, paragraph 2 (a), paragraph 29(b) and regulation 30 to commence on 31 May 1990; regulation 5 to commence on 1 June 1990 - reflect the need to prevent individuals being disadvantaged as a result of technical deficiencies mainly, the omission of amendments consequential on earlier amendments, as well as to make stylistic changes.
Regulation 10 to commence on 31 May 1990; regulation 18 to commence on 1 June 1990; regulation 9 to commence on 30 June 1990 and regulation 27 and 37 to commence on 1 July provide individuals with increased entitlements in terms of being eligible for the grant of visas or entry permits.
Details of the regulations are set out in the Attachment.
Authority; Sections 23, 33, 181
Migration Act 1958
Issued by the Minister of
State for Immigration,
Local Government & Ethnic Affairs
ATTACHMENT
MIGRATION REGULATIONS (AMENDMENT)
Regulation 1 - Commencement
This regulation provides for a number of retrospective commencement dates for amendments to the regulations. Details of retrospectivity are given in relation to each regulation affected.
Regulation 2 - Interpretation
This regulation makes a number of technical amendments which include changes to the definitions of “assurance of support”, “extended eligibility entry permit”, “restricted refugee entry permit” and “restricted refugee visa” in the Migration Regulations. In relation to the definition of “public interest criteria” this regulation remakes an earlier amendment in respect of dependants of Australian permanent residents. Some of these amendments are retrospective to the dates the corrections should have been made.
This regulation also amends the definition of “formal course” in the Migration Regulations to clarify that the Minister referred to is the Minister of State for Employment, Education and Training.
In addition, this regulation inserts a new definition into the Migration Regulations which defines “PRC” as the People’s Republic of China.
This regulation also amends the definition of “student visa” in the Migration Regulations to include the new student (restricted) visa. This amendment is retrospective to 31 May 1990, the date that student (restricted) visas were made in Statutory Rule No. 75 of 1990.
This regulation also makes a technical amendment to regulation 2(3) of the Migration Regulations.
Regulation 3 - Grant of visa
Regulation 13(2) of the Migration Regulations states which visas are to be granted as temporary or permanent in nature. Currently the regulations do not cover all the classes of visas granted. This regulation amends regulation 13(2) so that the list of visas included in that subregulation is comprehensive.
Regulation 4 - Mandatory conditions for grant of visas
This regulation makes a minor technical and stylistic amendment to regulation 18 of the Migration Regulations to make it clearer and to ensure consistency with regulation 29 (Mandatory conditions for grant of entry permits).
Regulation 5 - Application for entry permit
This regulation amends regulation 22 of the Migration Regulations to ensure that it is read subject to regulation 34. Regulation 22 sets out the conditions to be met upon applying for an entry permit, while regulation 34 sets out the additional conditions to be met by a person in custody applying for an entry permit.
Regulation 6 - Certain applications to have effect as applications for processing entry permits
This regulation amends regulation 22A of the Migration Regulations to remove the time limit of 1 June 1990 in relation to applications lodged on or before 19 December 1989. Accordingly all applications for a permanent entry permit will automatically be an application for a processing entry permit. This amendment is necessarily retrospective to 31 May 1990.
Regulation 7 - Repeal
This regulation repeals regulation 22B of the Migration Regulations which enables certain applications by PRC citizens to be taken to be applications for certain other entry permits. This repeal is consequential on the repeal of regulation 141 (see regulation 27 below).
Regulation 8 - Grant of entry permit
Regulation 24(2) of the Migration Regulations states which entry permits are to be granted as permanent entry permits or as temporary entry permits. Currently the regulation does not cover all classes of entry permits granted. This regulation amends regulation 24(2) so that the list of entry permits included in that regulation is comprehensive.
Regulation 9 - Mandatory conditions for grant of entry permits
This regulation makes a stylistic amendment to regulation 29 of the Migration Regulations to make it clearer and to ensure consistency with regulation 19 (Mandatory conditions for grant of visas).
Regulation 10 - Class of of entry permits - statutory visitors
This regulation makes a minor technical amendment to regulation 31 of the Migration Regulations to correct a minor error. This regulation is retrospective to 19 December 1989, the date the error was made.
Regulation 11 - Grant of entry permits - illegal entrants
This regulation makes a necessary consequential amendment to regulation 35AA of the Migration Regulations as a result of the new regulation 42 (1C) (ba) inserted by Statutory Rule No. 75 of 1990 of 31 May 1990.
The regulation also extends the deadline from 30 June 1990 to 31 October 1990 for illegal entrants who wish to apply to regularise their status.
In addition this regulation makes a number of minor technical amendments to regulation 35AA of the Migration Regulations.
Regulation 11 is necessarily retrospective to 30 June 1990.
Regulation 12 - Restrictions on re-entry
This regulation amends regulation 36(1)(e)(ii) of the Migration Regulations to extend the period during which restrictions on entry applying to persons who leave Australia voluntarily after their period of grace expired do not apply, from up to 1 June 1990 to up to 1 November 1990. This amendment is necessarily retrospective to 31 May 1990.
Regulation 13 - “Prescribed vessel” and “prescribed crew member” - subsection 4(1) (definition of “exempt non-citizen”)
This regulation amends regulation 37 of the Migration Regulations to exclude a vessel used wholly or principally for research from being a prescribed vessel so that the crew of such vessels may be lawfully exempted from the need to hold an entry permit when in Australia. This regulation is retrospective to 19 December 1989 in order not to disadvantage a number of people.
Regulation 14 - Prescribed class of persons - subsection 47(7) (definition of “prescribed non-citizen)”
This regulation amends Regulation 39 of the Migration Regulations to include the new student (restricted) class created in Statutory Rule No. 109 of 1990. The amendment will include the holders of student (restricted) visas or entry permits, and their dependants, in the definition of “prescribed non-citizen” for the purposes of subsection 47(7) of the Migration Act.
Regulation 15 - Prescribed change in circumstances - paragraphs 36(1)(a) and 37(2)(a) of the Act
This regulation makes a minor stylistic amendment to regulation 40(1)(a)(i) of the Migration Regulations.
This regulation also amends regulation 40 of the Migration Regulations to remove the restrictions flowing from sections 36 and 37 of the Migration Act for applicants for the new PRC (temporary) entry permit.
It also amends regulation 40(2) (c) of the Migration Regulations to include a reference to “entry permit”. This reference should have been included when regulation 40(2) (c) was amended by Statutory Rule No. 1 of 1990. This amendment is consequently retrospective to 19 December 1989, the date on which that amendment came into operation.
In addition, this regulation amends regulation 40(2)(d)(i) of the Migration Regulations to replace the 21 September 1989 with 18 September 1989. This will ensure consistency with regulation 173A which sets out review rights for illegal entrants.
Regulation 16 - Prescribed criteria: classes of entry permits
This regulation amends regulation 42(2) of the Migration Regulations to provide criteria for the grant, on presentation of a visa, of certain entry permits listed in Part 3 of Schedule 3. This linkage was overlooked in the amendments which came into operation on 19 December 1989 so this amendment is retrospective to that date except for the reference to item 32 which is retrospective to 26 March 1990, the date that item was included in the Migration Regulations.
In addition this regulation makes a stylistic amendment to regulation 42(5) of the Migration Regulation to make it clearer.
Regulation 17 - Domestic worker (diplomatic or consular) visa
This regulation amends regulation 59 of the Migration Regulations to include a reference to “entry permit” as well as to “visa”. This reference is an omission which should have been included previously so this amendment is retrospective to 19 December 1989, the date these regulations came into operation.
Regulation 18 - Domestic worker (overseas executive) visa
This regulation amends regulation 60 of the Migration Regulations to correct a reference to “entry permit” as well as to “visa”. This reference is an omission which should have been included previously so this amendment is retrospective to 19 December 1989, the date these regulations came into operation.
Regulation 19 - Camp clearance visas
This regulation makes a technical amendment to regulation 106 of the Migration Regulations to delete a dual reference to the Philippines and Indonesia. This amendment is retrospective to 19 December 1989, the date from which the dual reference occurred.
Regulation 20 - Border visas
This regulation amends regulation 111 of the Migration Regulations to remove the time limit of 31 May 1990 which applied to subregulation 111(a).
This regulation also makes a technical amendment to Regulation 111(2) of the Migration Regulations to delete an incorrect reference to a “terminating” condition as the condition referred to is not a “terminating” condition.
Regulation 20 is necessarily retrospective to 1 June 1990.
Regulation 21 - Refugee B (restricted) visa or entry permit
This regulation amends regulation 117 of the Migration Regulations to provide that a visa or entry permit granted on the grounds of the applicant having refugee status, will not be valid for more than 4 years.
Regulation 22 - Repeal
This regulation repeals regulations 118 and 119 of the Migration Regulations to give effect to Government policy that temporary entry permits will not be granted on the grounds that an applicant is claiming refugee status.
This regulation also repeals regulation 119A of the Migration Regulations as its operation has now ceased.
In addition this regulation repeals regulations 119D and 119E of the Migration Regulations - to prevent access by PRC citizens to permanent residence. Regulation 119D set out prescribed criteria for an extended eligibility (PRC) entry permit and regulation 119E set out prescribed criteria for a PRC citizen entry permit. These entry permits are being replaced by the new PRC (temporary) entry permit. (See regulation 23)
Regulation 23 - PRC (temporary) entry permit and Refugee (temporary) entry permit
This regulation adds a new regulation 119H to the Migration Regulations to enable the grant of PRC (temporary) entry permits to citizens of the PRC who were present in Australia on 20 June 1989. PRC (temporary) entry permits will be granted for a period ending on 30 June 1994 and are not valid for the purposes of section 47 of the Migration Act.
This regulation also adds a new regulation 1191 to the Migration Regulations to enable the grant of Refugee (temporary) entry permits, as a preliminary to the grant of permanent residence, when the Minister considers that it is in the national interest to do so.
This regulation will come into operation on 1 August 1990, in accordance with Government policy.
Regulation 24 - Holder of trainee (English language). or trainee
(non-formal course). entry permit or prescribed temporary entry permit - temporary provisions
This regulation amends regulation 123A of the Migration Regulations to extend the operation of regulation 123A from 30 June 1990 to 31 August 1990. This regulation is necessarily retrospective to 1 July 1990.
Regulation 25 - Grant of temporary entry permits to certain domestic workers and Grant of temporary entry permit to certain students
This regulation adds a new regulation 125A to the Migration Regulations to enable the grant of a further temporary entry permit of the same class to a domestic worker (diplomatic or consular) in order to give effect to arrangements required by Government policy and not previously provided for.
This regulation also adds a new regulation 125B to the Migration Regulations to enable the grant of a further student (restricted) entry permit to the holder of a student (restricted) visa or entry permit or a trainee (English language) or a trainee (non-formal course) visa or entry permit. Again this amendment is made in order to give effect to arrangements required by Government policy and not previously provided for.
Regulation 26 - Extended eligibility (pilot) entry permits
This regulation repeals regulations 129 and 130 of the Migration Regulations. These regulations set out the prescribed criteria to be met before grant of an extended eligibility (other) entry permit and an extended eligibility (limited) entry permit.
The repeal of these regulations together with the repeal of regulation 141 (see regulation 27) terminates existing arrangements for access to permanent entry on humanitarian or refugee grounds to make way for new temporary entry arrangements approved by the Government.
This regulation also adds a new regulation 129 to the Migration Regulations to enable the grant of an Extended eligibility (pilot) entry permit. This regulation enables the grant of a temporary entry permit to a pilot who is already in Australia and who is qualified to fly specified aircraft.
Regulation 27 - Repeal
This regulation repeals regulation 141 of the Migration Regulations. This regulation sets out the prescribed criteria to be met before grant of a humanitarian grounds entry permit. The repeal of this regulation together with the repeal of regulations 129 and 130 (see regulation 26) terminates existing arrangements for access to permanent entry on humanitarian or refugee grounds to make way for new temporary entry arrangements approved by the Government.
Regulation 28 - Refugee (permanent) entry permit and Pilot (permanent) entry permit
This regulation adds a new regulation 142A to the Migration Regulations to enable the grant of a Refugee (permanent) entry permit. This regulation enables the grant of a permanent entry permit to a person who satisfies one of the provisions of section 47(1) of the Act and who holds a refugee (temporary) entry permit.
This regulation also adds a new regulation 142B to the Migration Regulations to enable the grant of a Pilot (permanent) entry permit to a pilot who is already in Australia and who is qualified to fly specified aircraft.
Regulation 29 - Qualification - suitability for employment
This regulation amends regulation 146 of the Migration Regulations to provide additional points in the points test for applicants with technical skills, for recent graduates with acceptable qualifications but with limited occupational experience, and for non-recent graduates with acceptable qualifications but who are working in semi or unskilled occupations.
Regulation 30 - Time when service takes effect
In accordance with the Government’s decision to allow person who were illegally in Australia on 19 December 1989 up to 1 November 1990 to apply for an entry permit, this regulation amends regulation 173 of the Migration Regulations to enable any such applicants an opportunity to seek review of an adverse entry permit decision.
Regulation 31 - Prescribed procedures - subsection 59(2) of the Act
This regulations amends regulation 178 of the Migration Regulations by omitting paragraph (b).
This regulation also makes a necessary consequential amendment to regulation 178(e) of the Migration Regulations as a result of an amendment made to regulation 42 by Statutory Rule No. 109 of 1990. That statutory rule extended from 2 to 7 the number of working days in which an illegal entrant arrested under section 92 or 93 of the Act, could lodge an application for an entry permit. This amendment will ensure that the Minister verifies that the 7 working days have elapsed before ordering the deportation of an illegal entrant. This amendment is retrospective to 31 May 1990, the date of operation of that Statutory Rule.
Regulation 32 - Prescribed matters: subsections 60(11 and 82) 11 of the Act
This regulation makes a necessary consequential amendment to regulation 179(f) of the Migration Regulations as a result of an amendment made to regulation 42 by Statutory Rule No. 109 of 1990. That statutory rule extended from 2 to 7 the number of working days in which an illegal entrant arrested under section 92 or 93 of the Act, could lodge an application for an entry permit. This amendment will ensure that the Minister consider whether the 7 working days have elapsed before ordering an illegal entrant to leave Australia. This amendment is retrospective to 31 May 1990, the date of operation of that Statutory Rule.
Regulation 33 - Fee on application for temporary entry permit granted only in Australia
This regulation amends regulation 185 of the Migration Regulations to provide for a fee of $50 to be paid on application for an entry permit under the new regulation 125A (further temporary entry permits for certain domestic workers) unless a sponsorship fee is payable in which case there is no fee.
In addition, this regulation also provides for a fee of $50 to be paid on application for an entry permit under the new regulation 125B (further student (restricted) entry permit).
Regulation 34 - Fee ore application for certain entry permits
This regulation amends regulation 186 of the Migration Regulations by omitting a reference to the refugee (after entry) entry permits (regulation 138) which were repealed by Statutory Rule No 204 of 1990. It also omits reference to humanitarian grounds entry permits (regulation 141) which are being repealed in this amendment to the Regulations (see regulation 27).
Regulation 35 - Repeal
This regulation repeals regulation 190 of the Migration Regulations which set out fees payable for a return visa Class B. This fee will now be set out in Schedule 8, Part 1.
Regulation 36 - Refund of fees
This regulation makes a minor technical amendment to regulation 194 of the Migration Regulations to correct cross-referencing to the Migration Act. This amendment is retrospective to 19 December 1989, the date these regulations came into operation.
The regulation also adds a new provision enabling a refund of fees for an applicant or a potential applicant for a PRC (temporary) entry permit who wishes to withdraw an application for a visa or another kind of entry permit.
Regulation 37 - Schedule 2
This regulation amends Schedule 2 of the Migration Regulations to remove a reference to a visa which was repealed in Statutory Rule No 204 of 1990.
Regulation 38 - Schedule 3
This regulation amends Part 1 of Schedule 3 of the Migration Regulations to correct the code numbers for items 32 and 37. This amendment is retrospective to 19 December 1989, the date from which the correct code numbers have been used.
This regulation also removes references to entry permits which have been repealed and adds a reference to the new Refugee (permanent), Pilot (permanent), PRC (temporary), Refugee (temporary) and Extended eligibility (pilot) entry permits.
Regulation 39 - Schedule 4
This regulation amends schedule 4 of the Migration Regulation to alter the points test in order to grant more points for certain age and qualification characteristics. It provides 5 additional points for age. It also provides 45 points for graduates with acceptable qualifications but less than 12 months work experience, and 40 points for graduates with acceptable qualifications but who obtained their qualifications more than 12 months ago, where in neither of these cases could the applicant receive these points under subregulation 146(a) to (e). This amendment is retrospective to 1 July 1990, the date on which the new points test was implemented in practice.
Regulation 40 - Schedule 5
This regulation makes a technical amendment to schedule 5 of the Migration Regulations to correct an item number which was incorrectly listed in Statutory Rule No. 109 of 1990 and to remove references to entry permits which have been repealed.
Regulation 41 - Schedule 6
This regulation makes a number of technical corrections to Forms 1, 2, 3 and 4 in Schedule 6 of the Migration Regulations.
Regulation 42 - Schedule 8
This regulation makes technical amendments to Schedule 8 of the Migration Regulations and removes references to entry permits which have been repealed.
It also sets a fee of $30 to be paid upon application for the new PRC (temporary) entry permit.
This regulation also amends item 52 to specify the fee for a return visa class B in Schedule 8 instead of in regulation 190.
In addition this regulation sets the fees to be paid upon application for PRC (temporary), refugee (temporary) and refugee (permanent) entry permits.