Migration Regulations (Amendment) 1997 No. 354
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 354
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Regulations (Amendment)
Section 504 of the Migration Act 1958 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Without limiting the generality of section 504, particular provision is made for, and in relation to, the following matters:
- paragraph 504(1)(a) of the Act provides that the Regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the Regulations.
In addition, regulations may be made pursuant to the following powers:
- subsection 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class.
The purposes of the Regulations are to amend the Migration Regulations to curtail abuse of the domestic violence provisions, to allow the Department of Immigration and Multicultural Affairs to collect a fee for service on behalf of the Department of Employment, Education, Training and Youth Affairs, to provide that certain unaccompanied minors travelling to Australia are afforded protection, and to make a minor technical amendment. In particular, the Regulations will:
- provide that on and after 1 January 1998, only final court orders are acceptable forms of evidence of domestic violence (regulation 3);
- allow the Department to collect a fee of $300 on behalf of the Department of Employment, Education, Training and Youth Affairs for an assessment of an applicant's educational qualifications by the National Office of Overseas Skills Recognition (regulation 5);
- extend the coverage of public interest criterion 4012 to certain temporary residence visas to prevent unaccompanied minors from being sponsored by persons not of good character. As a result of the extended coverage, consequential amendments are also made to public interest criterion 4012 (regulations 6, 7 and 8); and
- make a minor technical amendment to regulation 1.20J (regulation 4).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 January 1998.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides for these Regulations to commence on 1 January 1998.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 1.201 Limitation on approval of sponsorships and nominations spouse, prospective spouseand independency visas)
Regulation 3 is a technical amendment which amends paragraph 1.201(1A)(b) to clarify that only the phrase "other permission granted under the Act" should be qualified by the further phrase "to remain indefinitely in Australia".
Regulation 4 - Regulation 1.23 (When is a person taken to have suffered or committed domestic violence?)
Regulation 4 substitutes new paragraph 1.23(1)(d). The current paragraph 1.23(1)(d) provides that a person is taken to have suffered or to have committed domestic violence where an order has been made under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from domestic violence.
New paragraph 1.23(1)(d) provides that, on or after 1 January 1998, where an applicant claims to the Department of Immigration that they suffer domestic violence, only certain orders will be considered as evidence that the alleged victim has suffered domestic violence. These orders are orders made under a law of a State or Territory against the alleged perpetrator after the court has given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
The effect of this amendment is to limit the type of order which will form the basis for a person to be taken to have suffered or committed domestic violence.
Regulation 5 - Regulation 5.40 (Fees for assessment of a person's work qualifications and experience etc.)
This regulation inserts a new subregulation 5.40(1A) to provide for the imposition of a $300 fee when the National Office of Overseas Skills Recognition conducts an assessment of a person's educational qualifications. Regulation 5.40 already imposes fees for-assessments of work qualifications and experience.
Regulation 6 - Schedule 2, Part 303 (Emergency (Temporary Visa Applicant))
This regulation inserts new clause 303.227 which requires the applicant to satisfy public interest criterion 4012. Public interest criterion 4012 ensures that appropriate enquiries are made concerning the arrangements for unaccompanied minors seeking to travel to, enter and remain temporarily in Australia, so that they are not at risk of being sponsored by persons not of good character.
Regulation 7 - Schedule 2 (provisions with respect to the grant of subclasses of visas)
This regulation amends Schedule 2 to the Migration Regulations as set out in the Schedule.
Regulation 8 - Schedule 4 (Public interest criteria and related provisions)
Public interest criterion 4012 ensures that appropriate enquiries are made concerning the arrangements for unaccompanied minors seeking to travel to, enter and remain temporarily in Australia as visitors, so that they are not at risk of being sponsored by persons not of good character. Regulation 8 makes consequential amendments to paragraphs 4012(b), (c) and (d) of Schedule 4 to the Migration Regulations as a result of extending this criterion to certain temporary residence visas.
Schedule - Amendments of Schedule 2 to the Migration Regulation
Public interest criterion 4012 currently applies to both Subclass 676 (Tourist (Short Stay)) and 686 (Tourist (Long Stay)) visas. The purpose of these amendments is to extend the requirement to satisfy public interest criterion 4012 for an applicant to be granted the following temporary residence visas:
* Subclass 303 - Emergency (Temporary Visa Applicant);
* Subclass 416 - Special Program;
* Subclass 425 - Family Relationship;
* Subclass 560 - Student;
* Subclass 675 - Medical Treatment (Short Stay);
* Subclass 685 - Medical Treatment (Long Stay); and
* Subclass 773 - Border.
These amendments will ensure that appropriate enquiries are made, in relation to unaccompanied minors, when they seek to travel to, enter and remain temporarily in Australia, so that they are not at risk of being sponsored by persons not of good character.