EXPLANATORY STATEMENT
Subject - Migration Act 1958
Migration Regulations (Amendment) No. 402
Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition sections 23 and 33 of the Act enable him to make regulations providing for different classes of visas and entry permits.
The purpose of the Regulations is to provide for:
the grant of permanent entry permits to some persons who innocently became illegals when they were minors.
- the grant of permanent entry permits to persons who were illegally in Australia before 19 December 1989 (when the current regulatory scheme for entry into Australia was introduced) and who can present either compassionate circumstances or a familial relationship with an Australian citizen or permanent resident.
assurances of support to be entered into for a period of 5 years - assurances of support are undertakings that the assurer will provide accommodation, will pay certain medical expenses, and will be responsible for any unemployment or special benefits (but not other Social Security benefits) paid to the person in respect of whom the assurance is lodged.
- a number of technical amendments consequential on the policy changes indicated above, and others to clarify the principal Regulations and to reflect changed procedures. There are no policy issues involved in these amendments.
Details of the regulations are set out in the Attachment.
| Authority: | Sections 23, 33, 181 Migration Act 1958 |
|
| Cabinet Minute No. 14546 of 15 October 1990 |
Issued by the Minister of State for Administrative Services for and on behalf of the Minister of State for Immigration, Local Government and Ethnic Affairs
ATTACHMENT
Regulation 1 - Commencement
This regulation provides for these amendments to commence on 10 December 1990.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended.
Regulation 3 - Regulation 2 (Interpretation)
This regulation inserts a definition of “prohibited non-citizen” into the Migration Regulations. This term was used in the Migration Act (the Act) and the Migration Regulations prior to 19 December 1989.
This regulation also inserts definitions of “provisional entry permit” and “provisional visa” into the Migration Regulations. These definitions will simplify procedures by grouping together under the general heading of “provisional visa” or “provisional entry permit”, those visas and entry permits which are granted to allow entry to a person who must satisfy a requirement which can only be met in Australia.
Regulation 4 - New regulation 12A
This regulation inserts a new regulation 12A into the Migration Regulations to enable an application for any permanent entry visa to also be an application for a provisional visa.
Regulation 5 - Regulation 13 (Grant of visa)
This is a technical amendment consequential on the creation of the return visa class F in regulation 14 below.
Regulation 6 - Regulation 15 (Recording and evidencing of visa)
This regulation amends regulation 15 of the Migration Regulations to enable correction in the visa register or computerised record of a decision on a visa which has been wrongly recorded or evidenced.
Regulation 7 - Regulation 16 (Effect and operation of visas)
This regulation amends regulation 16 as a result of the creation of a new visa - return visa class F - comments on regulation 13 below refer. Return visa class F will entitle the holder to travel to Australia once only within 3 months of when that visa is granted.
Regulation 8 - Regulation 19 (Grant of return visa in emergency (Australian permanent resident)
Regulation 19 of the Migration Regulations is being omitted as it is being replaced by a simplified procedure involving the new return visa class F - see regulation 13.
Regulation 9 - Regulation 22A (Certain applications to have effect as applications for processing entry permits and return visas, classes A and B)
This regulation amends regulation 22A of the Migration Regulations to provide for the “automatic” grant of return visas when persons are granted permanent residence.
Regulation 10 - Regulation 26 (Recording and evidencing of entry permits)
This regulation amends regulation 26 of the Migration Regulations to enable correction in the entry permit register or computerised record of a decision which has been wrongly recorded or evidenced.
Regulation 11 - Regulation 36 (Restrictions on re-entry)
Regulations 11.1. 11.2, 11.3, 11.4 amend subregulation 36(1) of the Migration Regulations to make it clear that the exclusion periods under that regulation apply to persons who are subject to a Requirement to Depart notice.
Regulation 11.5 amends paragraph 36(1)(e) of the Migration Regulations to ensure that the exclusion provisions apply to illegal entrants who breach conditions to which their expired entry permits had been subject.
Regulation 11.6 makes a minor grammatical amendment as the result of the inclusion of new paragraphs (f) and (g) (see regulation 11.7).
Regulation 11.7 inserts new paragraphs (f) and (g) into regulation 36(1) of the Migration Regulations. These paragraphs set out exclusion periods ie. periods during which applications for visas will not be accepted from persons who were unlawfully in Australia on or before 18 December 1989 and who leave voluntarily without their departure being enforced after unsuccessfully applying for December 1989 (temporary) and/or December 1989 (permanent entry permits.
Paragraph (f) sets exclusion periods of 2 and 5 years for those who come forward voluntarily within the second and third years respectively following 18 December 1990, apply unsuccessfully for December 1989 (temporary) and/or December 1989 (permanent) entry permits and subsequently leave Australia voluntarily.
Paragraph (g) sets exclusion periods of 1, 2 and 5 years for those, who after apprehension by the Department, apply unsuccessfully for December 1989 (temporary) and/or December 1989 (permanent) entry permits, in the first, second and third years, respectively, following 18 December 1990, and subsequently leave Australia voluntarily.
Regulation 12 - Regulation 40 (Prescribed change in circumstances - paragraphs 36(1) fa) and 37(2)(a) of the Act)
Sections 36 and 37 of the Act will prevent, under certain circumstances, an illegal entrant applying for an entry permit unless there has been a prescribed change in the applicant’s circumstances. This amendment prescribes a change in circumstances so that an illegal entrant applying for a December 1989 (temporary) or December 1989 (permanent) entry permit will not be stopped from doing so by sections 36 and 37.
Regulation 13 - Regulation 42 (Prescribed criteria - classes of entry permits)
Allows persons who were illegal entrants before 19 December 1989 to apply for an entry permit despite the general restrictions imposed by regulation 42 on illegal entrants applying for entry permits.
Regulation 14 - Regulation 98A (new regulation)
Creates a return visa class F to replace the procedure embodied in regulation 19 now being deleted (see regulation 5 above).
Regulation 15 - Regulation 127 (Extended eligibility (family) entry permit)
Provides for the grant of a temporary entry permit in order to allow the grant of a permanent entry permit to a person who became an illegal entrant while still a minor (see regulation 18 below).
Regulation 16 - Regulation 131 (Processing entry permit)
Provides for an applicant for a December 1989 (temporary) or a December 1989 (permanent) entry permit to be granted a processing entry permit.
Regulation 17 - Regulation 131A (New regulation)
Provides for the grant of a temporary resident entry permit to a person who was unlawfully in Australia before 19 December 1989, and who can establish that he/she has a close familial relationship with an Australian citizen or permanent resident; or that the departure of the person would present a compassionate ground to the effect that extreme hardship or irreparable damage to the interests of an Australian citizen or permanent resident or other Australian party provided that the compassionate ground did not arise from a political event occurring in the applicants country of citizenship.
Regulation 18 - Regulation 140 (Compassionate grounds entry permit)
Provides for the grant of a permanent entry permit to a person who became an illegal entrant while still a minor and make some minor technical changes.
Regulation 19 - Regulation 142 (Confirmatory entry permit)
Provides for the grant of a permanent entry permit to a person who has been granted a return visa class F.
Regulation 20 - Regulation 142C (New regulation)
Provides for the grant of a permanent entry permit to a person who has been granted a temporary entry permit in accord with proposed regulation 131A (see regulation 17 above).
Regulation 21 - Regulation 180 (Prescribed matters - subsection 63(1) of the Act)
Under section 48 of the Act a person cannot be granted an entry permit if there is a deportation order in force against them. Section 63 of the Act, however, allows the Minister to revoke the deportation order after he considers a prescribed matter. A number of illegal entrants who would otherwise be eligible for the grant of a December 1989 (temporary) or December 1989 (permanent) entry permit have deportation orders against them. This amendment allows those deportation orders to be revoked.
Regulation 22 - Regulation 190A (New regulation)
Sets the fee for the grant of a December 1989 (temporary) entry permit.
Regulations 23, 24 and 25
Make technical amendments to Schedules 2, 3 and 8 which are consequential on the creation of the December 1989 (temporary) and December 1989 (permanent) entry permits, and the return visa class F.