Migration Regulations (Amendment)

EXPLANATORY STATEMENT

Subject:  Migration Act 1958

  Migration Regulations (Amendment)

  1990 No. 1

Section 181 of the Migration Act 1958 (the Act) provides the power in so far as is relevant to prescribe matters which are required by the Act and which are necessary or convenient to be prescribed for the carrying out or giving effect to the Act.

In addition, regulations are prescribed pursuant to the following powers:

- section 33 of the Act provides that without limiting the generality of section 181, the regulations may provide for inter alia different classes of entry permits;

- section 36 provides inter alia the power to prescribe the change in a person’s circumstances before that person can make a further application after review has taken place;

- section 37 provides inter alia the power to prescribe the change in circumstances to make further applications, where the person is an illegal entrant and for which review has not been applied.

The purpose of the regulations is to:

- prescribe certain provisions which were purportedly made in the Migration (Criteria and General) Regulations, pursuant to powers in the Migration Legislation Amendment (Consequential Amendments) Act 1989. These regulations were purportedly made on 14 December 1989 but as this was before that Act was made and passed by the Senate, the regulations were a nullity. The present amendments have a retrospective commencement date of 19 December 1989. This enables the regulations to commence on the day on which they would have commenced had the power existed, and ensures that visas and entry permits granted between 19 December 1989 and the commencement of these regulations are valid otherwise persons holding these visas and entry permits would be severely disadvantaged.

- prescribe which visas are exempt visas for the purposes of section 24 of the Act; and

- make technical amendments to the Principal Regulations.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

PROPOSED MIGRATION REGULATIONS (AMENDMENT)

PART 1 - PRELIMINARY

Regulation 1 - Commencement

This regulation provides that Part 2 of these regulations is to have commenced on 19 December 1989.

This regulation also provides that Part 1 in the Schedule is to be taken to have commenced on 20 December 1989 the date on which the Act was renumbered.

Regulation 2 - Principal Regulations

This regulation provides that “Principal Regulations” means the Migration Regulations.

PART 2 - GENERAL

Regulation 3 - Prescribed notification - paragraph 11E(3)(a) of the Act

This regulation provides that regulation 14 of the Principal Regulations does not apply in relation to exempt visas within the meaning of the Act.

Regulation 4

This regulation inserts regulation 14A into the Principal Regulations which prescribes all classes of visas other than concessional family visas and independent entrant visas, as exempt visas.

Regulation 5 - Prohibition against grant of entry permit

This regulation amends regulation 25(1)(b) of the Principal Regulations by ensuring that its operation relates to previous applications for an entry permit not the application under consideration.

Regulation 6 - Grant of entry permit after entry

This regulation inserts a new regulation 35AA which sets out the additional criteria which an illegal entrant must satisfy in order to be granted an entry permit. The criteria are divided into two broad groups - those applying to persons who arrived before 19 December 1989, and those who arrived on or after 19 December 1989. The regulation provides greater flexibility in assessing applications from the first of the two groups.

The common principle in relation to these groups is that the regulation sets to one side a criterion that a person must hold a valid temporary entry permit before being eligible to be granted another entry permit. The major difference is that whereas the first group need only satisfy the criteria for the entry permit they are applying for at the time of application, those arriving on or after 19 December 1989 must also have satisfied the criteria immediately before becoming an illegal entrant.

Regulation 7

This regulation repeals and re-inserts regulation 37A of the Principal Regulation.

Regulation 8

This regulation repeals and re-inserts Division 8 of Part 3 of the Principal Regulations. In addition regulation 147 is amended to provide that the sponsor may be either a sibling or parent in a natural adopted, or step relationship.

Regulation 9

This regulation repeals and re-inserts regulations 178, 179 and 180 of the Principal Regulations.

Regulation 10

This regulation repeals and re-inserts regulation 193 of the Principal Regulations.

Regulation 11

This regulation repeals and re-inserts Schedule 4 of the Principal Regulations.

Regulation 12

This regulation repeals and re-inserts Schedule 7 of the Principal Regulations.

PART 3 - MISCELLANEOUS

Regulation 13 - Interpretation - good character

This regulation omits subregulation 4(2) of the Principal Regulations, as the object of the sub regulation is more effectively covered by the time period in which a visa is valid.

Regulation 14 - Effect and operation of visas

This regulation extends Regulation 16 of the Principal Regulations to the issue of a permanent entry permit in Australia.

Regulation 15 - Prohibition against grant of entry permit

This regulation ensures that regulation 25 of the Principal Regulations will not apply to applicants for a PRC citizen entry permit.

Regulation 16 - Repeal regulation 35A

This regulation repeals regulation 35A of the Principal Regulations.

Regulation 17 - Prescribed change in circumstances - paragraphs 36(1)(a) and 37(2)(a) of the Act

This regulation amends paragraph 40(1)(b) by providing that a change of circumstance is also to include the permanent migration of the child.

In addition this regulation prescribes three further changes in circumstances in relation to section 37 of the Act. These are that the applicant:

- must have become the spouse of an Australian citizen or an Australian Permanent Resident before 19 December 1989; or

- is able to satisfy the criteria in regulation 128 of the Principal Regulations before 19 December 1989. 19 December 1989 is the date on which the amendments to the Act by the Migration Regulation Amendment Act 1989 and the regulations made thereunder, commenced; or

- has applied before 7 March 1989 in accordance with a form approved by the Minister, for a reconsideration of a decision to refuse an entry permit, and the person was notified that the application will not be determined.

Regulation 18

This regulation inserts regulation 119D and 119E after 119C of the Principal Regulations. Regulations 119D provides for the grant of an extended eligibility entry permit (Extended eligibility (PRC) entry permit) to a PRC national who was in Australia legally on 20 June 1989. Regulation 119E provides for the grant of an entry permit (PRC citizen entry permit) respectively to nationals of the PRC who were in Australia illegally on 20 June 1989.

Regulation 19 - Grant of temporary entry permit (other than working holiday entry permit) to holder of visitor visa or visitor entry permit

This regulation corrects regulation 120 of the Principal regulations by changing 120(e)(vi), (vii) and (viii) to 120(f), (g) and (h) respectively.

Regulation 20 - Grant of visitor or student entry permit to holders of certain student visas or entry permits

This regulation merely clarifies that in paragraph 123(d)(iii), trainee only applies in relation to subparagraphs (D) and (E).

Regulation 21 - Extended eligibility (family) entry permit

This regulation merely provides a technical amendment to paragraph 127(a)(ii) of the Principal Regulations in that it is only the Australian permanent resident who is required to live in Australia for a reasonable time.

In addition subsection 127(a)(iv) is further clarified.

Regulation 22 - Extended Eligibility (economic) entry permit

This regulation merely provides a technical amendment to ensure that persons who are prescribed non-citizens immediately before 19 December 1989 are covered.

Regulation 23 - Compassionate grounds entry permit

This regulation amends regulation 140 of the Principal regulations to provide that what was paragraph 140(1)(c) is actually included as a reference to strong compassionate grounds. As previously drafted it was misplaced and inaccurate.

Regulation 24 - Confirmatory entry permit

This regulation makes a technical amendment to regulation 142 of the Principal Regulations to ensure that the applicant has satisfied any of the prescribed criteria that he/she could only satisfy after entry into Australia.

Regulation 25 - Prescribed diseases - subparagraph 20(1)(d)(i) of the Act

This regulation makes a technical amendment to regulation 176 of the Principal regulations to ensure the disease assessed is that which is a threat during the person’s stay in Australia.

Regulation 26 - Infringement Notice and prescribed penalty

This regulation makes a technical amendment to regulation 179 (second occurring) to remove the double reference to regulation 179 by referring to 179 headed “Infringed notice and prescribed penalty” as “179A”.

Regulation 27 - Repeal regulation 181

This regulation repeals regulation 181 of the Principal Regulations.

This amendment merely removes the double reference to regulation 181.

Regulation 28

This regulation inserts a new regulation 182A into the Principal regulations to prescribe the offences for a breach of the Regulations.

Regulation 29 - Schedule 2

This amendment merely makes a technical amendment to item 2 in Part 3 of Schedule 2 of the Principal Regulations to ensure that ‘settled’ refers to the sponsoring relative not the applicant.

Regulation 30 - Schedule 3

This regulation merely adds the two new entry permit classes to Schedule 3 of the Principal regulations and makes a technical amendment.

Regulation 31 - Schedule 5

This regulation makes a technical amendment to include refugee B, D and extended eligibility (limited) entry permits to item 1 in Schedule 5 of the Principal regulations.

Regulation 32 - Schedule 8

This regulation merely prescribes the fees for the two new entry permit classes and the extended eligibility (limited) entry permit.

Regulation 33 - Minor amendments

This regulation makes more amendments to the Principal Regulation by reference to the Schedule.