EXPLANATORY STATEMENT
Social Security (Classes of Refugee Visa) Declaration 2008 (No. 1)
Summary
Section 25 of the Social Security Act 1991 (the Act) allows the Minister for Education, Employment and Workplace Relations and the Minister for Families, Housing, Community Services and Indigenous Affairs to declare that a class of permanent visas is to be a class of visas for the purposes of subparagraph 7 (6B) (c) (iii) of the Act where the Minister is of the view that a person holding that visa class should be regarded as a refugee for the purposes of section 7 of the Act.
The purpose of this Declaration is to enable any person who is the holder of a subclass 851 of Resolution of Status (Class CD) visa to be regarded as a refugee for the purposes of the social security law. This would enable the person to access social security payments without having to serve the newly arrived resident’s waiting period.
Background
Under the social security law, some newly arrived residents are subject to a newly arrived resident’s waiting period during which the person is not eligible to receive certain social security payments.
Under subsection 7 (6) of the Act, the waiting period for qualification for some payments is waived for refugees who have permanent residence in Australia.
Subparagraph 7 (6B) (c) (iii) of the Act provides that a person is a refugee for the purposes of the section if the person is a holder of a permanent visa of a class referred to in a declaration of the Minister under section 25.
This Declaration declares subclass 851 of Resolution of Status (Class CD) visa as a class of visas for the purposes of subparagraph 7 (6B) (c) (iii) of the Act. Thus, it has the effect of exempting holders of Class CD visas from the newly arrived residents waiting period, and those people will be able to access social security payments from the day they are granted the visa (subject them to meeting the other eligibility and payability criteria for those payments).
Explanation of Provisions
Section 1 of the Declaration states the name of the Declaration.
Section 2 states that the Declaration commences on 9 August 2008, which is the date that amendments to the Migrations Regulations 1994 creating subclass 851 of Resolution of Status (Class CD) visa commence.
Section 3 contains interpretation provisions.
Section 4 specifies that subclass 851 of Resolution of Status (Class CD) visa is a class of visa for the purposes of subparagraph 7(6B)(c)(iii) of the Act.
Consultation
The Department of Families, Housing, Community Services and Indigenous Affairs was consulted during the preparation of this Declaration. This was done to ensure a co-ordinated and consistent approach to the treatment of subclass 851 of Resolution of Status (Class CD) visas under the Act.
This instrument is beneficial to income support recipients. Public consultation was therefore seen as unnecessary.
Regulatory Impact Analysis
This determination does not require a Regulatory Impact Statement. This determination will have negligible impact on business activity and no compliance or competition impacts.
Overview
The Social Security (Classes of Refugee Visa) Declaration 2008 (No. 1) was enacted to address the issue of newly arrived residents facing a waiting period before becoming eligible for certain social security payments. This legislation was introduced to ensure that individuals holding a subclass 851 of Resolution of Status (Class CD) visa are regarded as refugees under the Social Security Act 1991, thus exempting them from the newly arrived residents' waiting period. This change allows them to access social security payments immediately upon being granted the visa, provided they meet other eligibility criteria. The Declaration was prepared and enacted by the Australian Parliament, reflecting the policy objective to streamline the access to social security benefits for those who are genuinely in need, without unnecessary delays. The Department of Families, Housing, Community Services and Indigenous Affairs was consulted to ensure consistency in the treatment of these visa holders under the social security law.
Scope and Application
The Social Security (Classes of Refugee Visa) Declaration 2008 (No. 1) applies to individuals holding a subclass 851 of Resolution of Status (Class CD) visa, enabling them to be regarded as refugees for the purposes of the Social Security Act 1991. This declaration specifically aims to allow holders of Class CD visas to access social security payments immediately upon visa grant, thereby exempting them from the waiting period typically required for newly arrived residents. This legislation, which commenced on 9 August 2008, aligns with the amendments to the Migration Regulations 1994 that created the subclass 851 visa. The Act operates within the Commonwealth jurisdiction and does not include any exclusions, exemptions, or thresholds beyond those specified in the Social Security Act 1991. The declaration is an instrument under section 25 of the Act, and no subordinate instruments extend or restrict its application.
Key Provisions
The Social Security (Classes of Refugee Visa) Declaration 2008 (No. 1) primarily operates under section 4, which specifies that subclass 851 of the Resolution of Status (Class CD) visa is considered a class of visa for the purposes of subparagraph 7(6B)(c)(iii) of the Social Security Act 1991. This effectively means that individuals who hold a subclass 851 visa are regarded as refugees under the Act, thereby exempting them from the waiting period that newly arrived residents typically face before they can access certain social security payments. This provision allows eligible visa holders to receive social security payments from the moment they are granted the visa, provided they meet other eligibility criteria.
The Act imposes certain obligations on the holders of subclass 851 visas, primarily ensuring they meet the general eligibility criteria for social security payments. These obligations include providing accurate information about their circumstances and any changes that may affect their eligibility. The subclass 851 visa holders must also comply with the conditions of their visa, which are set out in the Migration Regulations 1994. Compliance with these conditions is essential to maintain their visa status and, by extension, their eligibility for social security benefits.
Under the Social Security Act 1991, breaches of the provisions related to social security payments can result in both civil and criminal penalties. Civil penalties can include fines and recovery of payments, while criminal penalties can include imprisonment. However, the specific penalties for breaches related to the subclass 851 visa holders would depend on the nature of the breach and the provisions of the Social Security Act 1991 and associated regulations. The maximum penalties for civil and criminal offences are not specified in the Explanatory Statement but would be detailed in the relevant sections of the Social Security Act 1991.