Migration Regulations (Amendment)

Overview

The Migration Regulations (Amendment) 1991 No. 88, issued under the authority of sections 23, 33, and 181 of the Migration Act 1958, was introduced to address specific gaps and correct inadvertent omissions within the existing migration regulations. The Act, enacted in 1958, has been amended over the years to adapt to the evolving needs of Australia's immigration system. This particular amendment was crafted to rectify a loophole that allowed individuals to circumvent the requirement that adoptive parents must have been resident overseas for more than 12 months when applying for an adoptive visa. By excluding children who have been adopted where the adoptive parent has resided overseas for 12 months or less at the time of the application from the definition of "remaining relative", the amendment ensures the integrity of the visa application process. Additionally, it rectifies an oversight by re-inserting the definition of "usual occupation" in regulation 146, which had been mistakenly omitted in a previous set of regulations. These amendments were issued by the Minister of Administrative Services for and on behalf of the Minister for Immigration, Local Government and Ethnic Affairs, aligning with the policy objective of maintaining a robust and fair immigration regulatory framework.

Scope and Application

The Migration Regulations (Amendment) 1991 No. 88 applies to all individuals and entities involved in the migration process under the Migration Act 1958, specifically targeting adoptive parents and children in the context of visa applications. The amendment aims to rectify a loophole in the regulations concerning adoptive children who are the last remaining relatives, ensuring that the adoptive parent must have been resident overseas for more than 12 months at the time of application. Additionally, it corrects an oversight by reinstating the definition of "usual occupation" in the regulations, which was mistakenly omitted in a previous amendment. This regulatory change is intended to tighten the criteria for adoptive visas and ensure the proper application of migration laws. Geographically, the application of these regulations extends across Australia, as the Migration Act 1958 operates on a national level. The amendments introduced by the Migration Regulations (Amendment) 1991 No. 88 apply to all individuals and entities within Australia, regardless of state or territory boundaries, and to any visa applications processed under the Act. The regulations are designed to maintain the integrity of the migration system and prevent any misuse or circumvention of the visa application process, ensuring that the legislative intent is upheld across the Commonwealth.

Key Provisions

The Migration Regulations (Amendment) 1991 No. 88 primarily amends two existing regulations under the Migration Act 1958. The first significant amendment (proposed regulation 2) pertains to regulation 9, specifically altering the definition of "remaining relative" to exclude a child who has been adopted if the adoptive parent has been resident overseas for 12 months or less at the time of the application. This change aims to close a loophole that allowed applicants to circumvent the requirement that an adoptive parent must have been resident overseas for more than 12 months, a criterion outlined in regulation 46 for adoptive visas (section 23 of the Act). The second amendment (proposed regulation 3) concerns regulation 146, where the definition of "usual occupation" is re-inserted into subregulation 146(2), correcting an inadvertent omission made in Statutory Rules No 60 of 1991 (section 181 of the Act). The obligations and requirements imposed by these amendments are primarily directed towards applicants for adoptive visas and their adoptive parents. For adoptive visas, the amended regulation 9 now mandates that the adoptive parent must have been resident overseas for more than 12 months at the time of application. This requirement ensures that there is a more stringent scrutiny of the residency period, thereby closing any potential loopholes that might have allowed for shorter overseas stays to be considered sufficient. Furthermore, the re-insertion of the definition of "usual occupation" in regulation 146(2) ensures that applicants can accurately demonstrate their occupational status, which is a critical component of their application process (section 33 of the Act). In terms of offences, penalties, or consequences for breach, the Migration Regulations (Amendment) 1991 No. 88 does not explicitly state specific penalties for non-compliance with the newly amended regulations. However, under the general provisions of the Migration Act 1958, breaches of migration regulations can result in a range of civil and criminal penalties. Civil penalties may include fines, deportation, and cancellation of visas, while criminal penalties can include imprisonment, depending on the nature and severity of the breach. The exact penalties are determined by the courts, taking into account the specific circumstances of each case.