Migration Regulations (Amendment) 1998 No. 210
EXPLANATORY STATEMENT
STATUTORY RULES 1999 NO. 210
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, paragraph 504(1)(g) of the Act provides that the regulations may require an assurance of support to be given in relation to a person seeking to enter, or remain in, Australia, and may provide for the enforcement of an assurance of support and the imposition of a liability on the assurer.
In addition, regulations may be made pursuant to the following powers:
- paragraph 5(2)(b) of the Act provides for prescribing the evidence which a person
may provide of English language proficiency to show that the person has
functional English for the purposes of the Act;
- subsection 31(1) of the Act provides that the regulations are to prescribe classes
of visas;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for
visas of a specified class;
- subsection 41(1) of the Act provides that the regulations may provide that visas or
visas of a specified class are subject to specified conditions;
- subsection 41(2) of the Act provides that, without limiting subsection 41(1), the
regulations may provide that visas or visas of a specified class are subject to
conditions restricting work rights,
- subsection 41(3) of the Act provides that the Minister may specify that a visa is
subject to such conditions as are permitted by the regulations for the purposes of
that subsection;
- subsection 45(1) of the Act provides that the regulations may make provision in relation to applications for visas;
- subsection 93(1) of the Act provides that the Minister shall make. an assessment by giving the applicant the prescribed number of points for each prescribed qualification'
The purpose,; of the Regulations are to amend the Migration Regulations to reflect changes to social security legislation, alter the criteria and conditions for Bridging (General) visas, amend points test provisions and make consequential amendments and transitional provisions.
In particular, the Regulations will:
- amend regulations 2.33 and 2.38 to include additional Department of Social Security payments as a consequence of amendments to social security legislation (regulations 4 and 5);
- replace the automatic entitlement to points for language skill currently available to persons who have studied for an award in English, with a discretion to award points for English or require the applicant to sit an English test to confirm their English ability (regulations 3 and 8);
- make Bridging (General) visas available to persons challenging the validity of migration laws and members of class actions, and make Bridging (General) visas granted to persons seeking judicial review or Ministerial intervention subject to a mandatory condition that the holder must not engage in work in Australia (regulation 7); and
- provide for the application of amendments and make consequential changes (regulations 6, 9 and 10).
Details of the Regulations are set out in the Attachment.
The regulations will commence on 1 July 1998.
ATTACHMENT
Regulation 1 - Commencement
This regulation. provides that these Regulations commence on 1 July 1998.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 2.26 (Prescribed qualifications and prescribed number of points)
This regulation amends subregulation 2.26(4) to provide a discretion to award points under the points test for language skill to applicants unable to provide the evidence required under Schedule 6 where the Minister determines it is unnecessary for the applicant to sit an English language test. Persons who would have been entitled to automatic points for language skill under items
6301 or 6305 prior to their repeal by these Statutory Rules may be awarded points under this discretion without having to sit an English test.
Regulation 4 - Regulation 2.33 (Effect of assurance of support)
This regulation amends regulation 2.33 so that an assurance of support under regulation 2.33 also applies to Youth Allowance and Austudy Payment under the Social Security Act 1991. Youth Allowance and Austudy Payment were introduced via the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 and the Social Security Legislation Amendment (Youth Allowance) Act 1998.
Existing assures who have already given an assurance of support in relation to visa applications lodged prior to 20 December 1991 will not be liable to repay any benefits added to regulation 2.33 by these amendments. However, there are still some unfinalised visa applications made prior to 20 December 1991 for which no assurances have yet been given. It is to these unfinalised applications that these amendments are intended to apply.
Regulation 5 - Regulation 2.38 (Liability of person giving assurance of support)
Subregulations 5.1, 5.2 and 5.4 amend regulation 2.38 to substitute references to "payment" with references to "support", in order to maintain consistency with the wording used in regulation 2.33.
Subregulation 5.3 amends regulation 2.38 so that an assurance of support under regulation 2.38 also applies to Youth Allowance and Austudy Payment under the Social Security Act 1991. Youth Allowance and Austudy Payment were introduced via the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 998 and the Social Security Legislation Amendment (Youth Allowance) Act 1998.
This amendment will apply to:
* unfinalised visa applications made after 19 December 1991 for which no assurances have yet been given; and
* new visa applications made after the commencement of this regulation.
Regulation 6 - Regulation 5.17 (Prescribed evidence of English language proficiency Act, s. 5(2)(b))
This regulation makes a consequential amendment to regulation 5.17. The amendment ensures that evidence of having a qualification set out in items 6301 and 6305 of Schedule 6 will continue to be prescribed evidence of English language proficiency for the purposes of regulation 5.17 despite the repeal of those items. The amendment also ensures that applicants who have evidence of an award of 10 or more points under the discretion in subregulation 2.26(4) also have prescribed evidence of English language proficiency.
Regulation 7 - Schedule 2. Part 050 (Bridging visa (general))
Subregulation 7.1 amends paragraph 050.212(4)(a) to ensure that persons seeking judicial review of decisions am only entitled to a Bridging Visa E if the decision is one relating to a substantive visa.
Subregulation 7.2 extends eligibility for the grant of a Bridging Visa E to persons seeking judicial review of the validity of a law that affects the person's eligibility to apply for a substantive visa or the person's entitlement to be granted or to continue to hold a substantive visa. This will ensure that persons in Australia seeking judicial review of provisions of the Migration Act 1958 and Migration Regulations which affect their substantive immigration status can maintain their lawful status while lose proceedings are ongoing.
Subregulation 7.3 extends eligibility for the grant of a Bridging Visa E to members of representative actions in the High Court or Federal Court seeking judicial review of decisions relating to substantive visas or of the validity of laws which affect their substantive immigration status.
Subregulations 7.4 makes a consequential amendment to clause 050-512.
Subregulation 7.5 provides that a Bridging Visa E granted to a person who is a member of a representative action ceases 28 days after the person opts out of, or is struck out of the representative proceeding.
Subregulation 17.6 imposes a mandatory condition on Bridging Visa Es granted to applicants for judicial review or persons seeking Ministerial intervention into a decision of a review officer, the Immigration Review Tribunal, the Refugee Review Tribunal or the Administrative Appeals Tribunal that the holder must not engage in employment in Australia.
Regulation 8 - Schedule 6 (General points test - qualifications and. points)
This regulation omits items 6301 and 6305 from Schedule 6.
Regulation 9 - Application of amendments (Assurance of support)
This regulation ensures that regulations 8 and 9 of Statutory Rules 1998 No. 104 (which add new forms of support to regulations 2.33 and 2.38) and regulations 4 and 5 of these Statutory Rules apply only to assurances of support given on or after 1 July 1998.
Regulation 10 - Application of amendments (Preferential Family and Family)
This regulation makes the amendments made by regulations 13 and 16 of Statutory Rules 1998 No. 104 apply to applications made, but not finally determined, before 1 July 1998, as well as to applications made on or after 1 July 1998. Regulations 13 and 16 of Statutory Rules 1998 No. 104 remove the age criterion at the time of decision for orphan relatives applying for a Subclass 104 (Preferential Family) or a Subclass 806 (Family) visa.