Migration Regulations (Amendment) 1993 No. 17
EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 17
Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs
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, paragraph 181(1)(a) enables regulations to be made for the charging and recovery of fees. In addition, sections 23 and 33 of the Act enable regulations to be made providing for different classes of visas and entry permits.
The purpose of the regulations is to delete paragraph 186B(1)(b) of the Migration Regulations and to substitute a new paragraph 186B(1)(b). The new paragraph provides that an applicant for a spouse (after entry) entry permit who is the holder of a prospective marriage entry permit or prospective marriage visa authorising a stay for a period of six months must pay an application fee of $370. The effect of this provision is that an applicant holding a prospective marriage visa or entry permit for a period other than six months is not liable to pay the fee.
From the time of the implementation of the arrangements provided for under the replaced paragraph 186B(1)(b), applicants overseas were granted prospective marriage visas authorising a temporary stay in Australia for a period of six months only. Previous to the implementation of these arrangements the period of stay authorised for holders of these visas was always for a lesser period, generally three months. Holders of six months prospective marriage visas were advised that after marriage in Australia they would be required to apply for a spouse (after entry) entry permit and pay the application fee. Holders of prospective marriage visas authorising a stay for a period of less than six months were not advised of any liability to pay a fee on application for resident status.
To protect the position of holders of visas of less than six months who were granted visas prior to the implementation of the arrangements under the replaced paragraph 186B(1)(b), but who were not formally issued with visas prior to that time, and/or those who were not advised that they were liable to pay an application fee, new paragraph 186B(1)(b) has been inserted. The amendment operates retrospectively from 1 December 1992 so that the applicants concerned will be taken to have been exempt from the fee from the time of its introduction. This is entirely beneficial to the applicants concerned, and is not prejudicial to any person. Therefore retrospective operation is not contrary to the provisions of section 48 of the Acts Interpretation Act 1901.
Details of the regulations are:
Regulation 1 provides for these Regulations to have retrospective operation from 1 December 1992.
Regulation 2 provides for the Migration Regulations to be amended.
Regulation 3 provides for former paragraph 186B(1)(b) to be omitted, and substitutes new paragraph 186B(1)(b) requiring holders of a prospective marriage visa or entry permit authorising a stay of six months to pay the fee of $370.
Overview
The Migration Regulations (Amendment) 1993 No. 17, issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs, was enacted to address a gap in the application of fees for certain prospective marriage visas and entry permits. This amendment arises from Section 181 of the Migration Act 1958, which allows for regulations to be made for the charging and recovery of fees, and sections 23 and 33, which provide for different classes of visas and entry permits. The primary objective of these regulations is to modify the fee structure for applicants seeking spouse (after entry) entry permits, specifically exempting those who hold prospective marriage visas or entry permits for a period other than six months from the application fee. This amendment operates retrospectively from 1 December 1992, ensuring that applicants who were granted visas prior to the implementation of the previous arrangements, and were not formally issued visas or advised of the fee liability, are exempt from the application fee. This measure is intended to be entirely beneficial and non-prejudicial, thus complying with the provisions of section 48 of the Acts Interpretation Act 1901.
Scope and Application
The Migration Regulations (Amendment) 1993 No. 17 amends the Migration Regulations under the Migration Act 1958, specifically targeting the application fees for certain visa categories. The regulations apply to applicants for a spouse (after entry) entry permit who hold a prospective marriage entry permit or prospective marriage visa authorising a stay of six months. These applicants are required to pay an application fee of $370. Conversely, applicants holding a prospective marriage visa or entry permit for a stay period other than six months are exempt from this fee. The amendment operates retrospectively from 1 December 1992, aiming to protect applicants who were granted visas before the implementation of the original arrangements but were not formally issued visas or informed of the fee liability prior to that time. This retrospective application ensures that such applicants are treated as exempt from the fee since its introduction, thereby benefiting these applicants without causing prejudice to others.
Key Provisions
The key operative sections of the Migration Regulations (Amendment) 1993 No. 17 are Regulation 1, which provides for retrospective operation from 1 December 1992, and Regulation 2, which amends the Migration Regulations. Regulation 3 specifically replaces paragraph 186B(1)(b) with a new provision that requires holders of a prospective marriage visa or entry permit authorising a stay of six months to pay a fee of $370 when applying for a spouse (after entry) entry permit. This fee applies only to applicants who hold a prospective marriage visa or entry permit authorising a six-month stay and not to those who hold a visa or permit for a shorter period.
The Act imposes obligations on applicants who hold a prospective marriage visa or entry permit authorising a stay of six months to pay the application fee of $370 when applying for a spouse (after entry) entry permit. This requirement ensures that the fee is only applicable to those who were granted a visa or permit authorising a six-month stay. Furthermore, Regulation 1 ensures that the amendment operates retrospectively from 1 December 1992, providing protection to applicants who were granted visas prior to the implementation of these arrangements but were not formally issued with visas prior to that time, or those who were not advised that they were liable to pay a fee on application for resident status.
The Migration Regulations (Amendment) 1993 No. 17 does not explicitly outline any offences, penalties, or consequences for breach. However, failure to comply with the fee requirement may result in the application for a spouse (after entry) entry permit being refused. Additionally, the retrospective operation of the amendment ensures that applicants who were granted visas prior to the implementation of these arrangements, but were not formally issued with visas prior to that time, or those who were not advised that they were liable to pay a fee on application for resident status, will be exempt from the fee, providing protection to these applicants. The amendment operates retrospectively from 1 December 1992 and is not contrary to the provisions of section 48 of the Acts Interpretation Act 1901.