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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment Bill (No. 3) 1996
No.
, 1996
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the
Australian Citizenship Act 1948, the Immigration (Education) Act
1971, the Migration Act 1958 and the Migration (Health Services)
Charge Act 1991, and for related purposes
9614120—975/15.10.1996—(141/96) Cat. No.
96 5270 1 ISBN 0644 482400
Contents
Part 1—Amendments 6mila3h1.html
Immigration (Education) Act
1971 6mila3h1.html
Migration Act
1958 6mila3h1.html
Migration (Health Services) Charge Act
1991 6mila3h1.html
Part 2—Application and
transitional 6mila3h1.html
Migration Act
1958 6mila3h1.html
Migration Act
1958 6mila3h1.html
Part 1—Amendment of the Australian Citizenship Act
1948 6mila3h1.html
Part 2—Amendment of the Migration Act
1958 6mila3h1.html
A Bill for an Act to amend the Australian Citizenship
Act 1948, the Immigration (Education) Act 1971, the Migration Act
1958 and the Migration (Health Services) Charge Act 1991, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment Act (No.
3) 1996.
(1) Schedule 1 commences on a day to be fixed by Proclamation.
(2) If Schedule 1 does not commence under subsection (1) within 6 months
beginning on the day on which it receives the Royal Assent, it commences on the
first day after the end of that period.
(3) The remaining provisions of this Act commence on the day on which this
Act receives the Royal Assent.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Immigration
(Education) Act 1971
1 Section 3 (definition of Charge
Act)
Repeal the definition.
2 Section 3 (definition of exempt entry
permit)
Repeal the definition.
3 Section 3 (definition of exempt
visa)
Repeal the definition.
4 Section 3 (definition of stay
visa)
Repeal the definition.
5 Section 3
Insert:
functional English has the same meaning as in the Migration
Act.
6 Paragraph 4B(a)
Omit “stay visa that is covered by paragraph 5(a) of the Charge
Act”, substitute “permanent visa”.
7 At the end of paragraph
4B(c)
Add “at the time of making the application”.
8 Paragraph 4B(d)
Repeal the paragraph, substitute:
(d) have paid, or are exempt from paying, visa application charge under
section 45A of the Migration Act; and
(e) are not excluded from being provided with English tuition by the
regulations.
9 Paragraph 4C(a)
Omit “stay visa that is covered by paragraph 5(a) of the Charge
Act”, substitute “permanent visa”.
10 Paragraph 4C(b)
Omit “stay visa”, substitute “permanent
visa”.
11 At the end of paragraph
4C(c)
Add “at the time of making the application”.
12 Paragraph 4C(d)
Repeal the paragraph, substitute:
(d) has paid, or is exempt from paying, visa application charge under
section 45A of the Migration Act; and
(e) is not excluded from being provided with English tuition by the
regulations; and
13 At the end of section 4C
Add:
(f) has not previously been entitled under this Act to 510 hours of
tuition in an approved English course.
14 Subsection 4D(4) (definition of relevant
visa or entry permit)
Repeal the definition.
15 Subsection 4D(4) (definition of visa
commencement date)
Omit “or entry permit” (wherever occurring).
16 Section 4E
Repeal the section.
17 Section 4F
Repeal the section.
18 Subsection 5(1) (after the definition of
visa applicant)
Insert:
visa application charge means the charge payable under
section 45A.
visa application charge limit is the amount determined under
section 5 of the Migration (Visa Application) Charge Act
1996.
19 After section 45
Insert:
A non-citizen who makes an application for a visa is liable to pay visa
application charge if, assuming the charge were paid, the application would be a
valid visa application.
(1) The amount of visa application charge is the amount, not exceeding the
visa application charge limit, prescribed in relation to the
application.
Note: The visa application charge limit is determined under
section 5 of the Migration (Visa Application) Charge Act
1996.
(2) The amount prescribed in relation to an application may be
nil.
(1) The regulations may:
(a) provide that visa application charge may be payable in instalments;
and
(b) specify how those instalments are to be calculated; and
(c) specify when instalments are payable.
(2) The regulations may also:
(a) make provision for and in relation to:
(i) the recovery of visa application charge in relation to visa
applications; or
(ii) the way, including the currency, in which visa application charge is
to be paid; or
(iii) working out how much visa application charge is to be paid;
or
(iv) the time when visa application charge is to be paid; or
(v) the persons who may be paid visa application charge on behalf of the
Commonwealth; or
(b) make provision for the remission, refund or waiver of visa application
charge or an amount of visa application charge; or
(c) make provision for exempting persons from the payment of visa
application charge or an amount of visa application charge; or
(d) make provision for crediting visa application charge, or an amount of
visa application charge, paid in respect of one application against visa
application charge payable in respect of another application.
20 After paragraph 46(1)(b)
Insert:
(ba) subject to the regulations providing otherwise, any visa application
charge that the regulations require to be paid at the time when the application
is made, has been paid; and
21 At the end of section 63
Add:
(4) The Minister is not to refuse to grant a visa after giving a notice
under section 64 and before whichever of the following happens first:
(a) the applicant pays the visa application charge; or
(b) the applicant tells the Minister that the applicant does not intend to
pay the visa application charge; or
(c) the end of the period set out in the notice.
22 Subsections 64(2), (3) and
(5)
Repeal the subsections, substitute:
(2) If this section applies and an amount of visa application charge is
unpaid, the Minister must give the applicant written notice stating
that:
(a) an amount of visa application charge is payable within the prescribed
period; and
(b) subject to the regulations providing otherwise, a visa cannot be
granted unless that amount is paid; and
(c) the Minister may refuse to grant the visa unless that amount is paid
within the prescribed period.
(3) If, in accordance with the regulations, 2 or more non-citizens apply
for a visa together, the Minister may give notices under this section in the
same document.
Note: The heading to section 64 is replaced by the heading
“Notice that visa application charge is
payable”.
23 Subparagraph
65(1)(a)(iv)
Repeal the subparagraph, substitute:
(iv) any amount of visa application charge payable in relation to the
application has been paid;
24 Subparagraph
504(1)(a)(iii)
Omit “for visa applications”.
25 Subparagraph
504(1)(a)(iv)
Omit “on behalf of the Commonwealth fees for visa
applications”, substitute “fees on behalf of the
Commonwealth”.
Migration
(Health Services) Charge Act 1991
26 Subsection 5(1)
After “1991”, insert “and before the commencement of the
Migration (Visa Application) Charge Act 1996”.
Part
2—Application and transitional
27 Application
(1) The amendment made by item 13 of this Schedule applies in relation to
applications whether made before, at or after the commencement of this
item.
(2) The remaining amendments of the Immigration (Education) Act 1971
and the Migration Act 1958 made by this Schedule apply in relation to
applications for visas made at or after the commencement of the Migration
(Visa Application) Charge Act 1996.
Note: Under item 28, some applications that are made before
the commencement of the Migration (Visa Application) Charge Act 1996 are
taken to be made immediately after that time.
28 Transitional
If:
(a) an application for a visa is made before the commencement of the
Migration (Visa Application) Charge Act 1996; and
(b) a visa application fee, or part of a visa application fee, payable
under the Migration Act 1958 in respect of the application has not been
paid at that time;
then, for the purposes of the Immigration (Education) Act 1971, the
Migration (Health Services) Charge Act 1991 and sections 45A, 45B and 45C
of the Migration Act 1958, the application is taken to have been made
immediately after the commencement of the Migration (Visa Application) Charge
Act 1996.
1 Subsection 39(1)
Repeal the subsection, substitute:
(1) The Minister may, by notice in the Gazette, determine either or
both of the following:
(a) the maximum number of visas of a specified class, or of specified
classes, (other than protection visas) that may be granted in a specified
financial year;
(b) the date after which no visas of a specified class, or of specified
classes, (other than protection visas) may be granted in a specified financial
year.
(1A) If:
(a) there is a determination of the maximum number of visas of a class or
classes that may be granted in a financial year; and
(b) the number of visas of the class or classes granted in the year
reaches that maximum number;
then, subject to the determination being revoked under subsection (3), no
more visas of the class or classes may be granted in the year.
(1B) If there is a determination that specifies a date after which no
visas of a class or classes may be granted in a financial year, then, subject to
the determination being revoked under subsection (3), no more visas of the class
or classes may be granted in the year after that date.
Note: The heading to section 39 is altered by omitting
“Criterion” and substituting
“Notice”.
2 Subsection 39(2)
Omit “a criterion allowed by subsection (1)”, substitute
“subsection (1A) or (1B)”.
3 At the end of subsection
39(2)
Add “(even if the determination is later revoked)”.
4 At the end of section 39
Add:
(3) A determination under subsection (1) may be revoked by the Minister,
by notice in the Gazette, at any time even if:
(a) the number of visas of the class or classes to which the determination
applies that have been granted has reached the maximum number specified in the
determination; or
(b) the date specified in the determination has passed.
(4) To avoid doubt, if the Minister revokes a determination under
subsection (3), the Minister may make another determination that applies to
visas of the class or classes to which the revoked determination applied. The
new determination may be in the same notice as the revocation.
5 Subsection 63(1)
Omit “criterion”, substitute “notice”.
6 Subsection 84(3)
Repeal the subsection.
7 Subsection 84(5)
Repeal the subsection.
8 Section 85
Omit all the words and paragraphs after “determine”,
substitute:
either or both of the following:
(a) the maximum number of visas of a specified class, or of specified
classes, that may be granted in a specified financial year;
(b) the date after which no visas of a specified class, or of specified
classes, may be granted in a specified financial year.
9 Section 86
Before “no more visas”, insert “then, subject to the
determination being revoked under section 87,”.
10 Section 86
Add at the end:
(2) If there is a determination that specifies a date after which no visas
of a class or classes may be granted in a financial year, then, subject to the
determination being revoked under section 87, no more visas of the class or
classes may be granted in the year after that date.
11 Section 87
Repeal the section, substitute:
(1) A determination under section 85 may be revoked by the Minister, by
notice in the Gazette, at any time even if:
(a) the number of visas of the class or classes to which the determination
applies that have been granted has reached the maximum number specified in the
determination; or
(b) the date specified in the determination has passed.
(2) To avoid doubt, if the Minister revokes a determination under
subsection (1), the Minister may make another determination that applies to
visas of the class or classes to which the revoked determination applied. The
new determination may be in the same notice as the revocation.
12 Transitional—notices under section
39
(1) If:
(a) at the commencement of this item, the regulations contain a criterion
of the kind referred to in section 39 of the old Act for visas of a class;
and
(b) the Minister has, under section 39 of the old Act, by notice in the
Gazette, specified a number as the maximum number of visas of the class
that may be granted in a specified financial year; and
(c) the notice has not been revoked before the commencement of this item;
and
(d) the financial year has not ended before the commencement of this
item;
then, the notice is taken, for the purposes of the amended Act, to be a
notice under section 39(1) of the amended Act specifying that number as the
maximum number of visas of the class that may be granted in that financial
year.
(2) In this item:
amended Act means the Migration Act 1958 as amended by
this Schedule.
old Act means the Migration Act 1958 as in force
immediately before the commencement of this Schedule.
1 At the end of the Act
Add:
The Sex Discrimination Act 1984, to the extent that it applies to
the status or condition of being married or being the de facto spouse of another
person, does not operate in relation to:
(a) regulations, or the making of regulations, that, for the purposes of
dealing with an application for a visa, specify:
(i) the nature and incidents of the relationship between a person and
another person; or
(ii) the period for which a relationship of a specified kind must have
existed between a person and another person;
before the person is taken to be the de facto spouse of the other person;
or
(b) the performance of any function, the exercise of any power or the
fulfilment of any responsibility, in connection with the administration of any
such regulation.
Part
1—Amendment of the Australian Citizenship Act 1948
1 At the end of subparagraph
21(1)(a)(ii)
Omit “and”, substitute “or”.
2 After subparagraph
21(1)(a)(ii)
Insert:
(iii) in respect of a person who was granted the certificate of Australian
citizenship as a result of an application for the certificate made after the
commencement of this subparagraph—obtained the certificate as a result of
migration-related fraud; and
3 After subsection 21(1)
Insert:
(1A) For the purposes of subparagraph (1)(a)(iii), a person is taken to
have obtained a certificate of Australian citizenship as a result of
migration-related fraud if, and only if:
(a) at any time (including a time after the grant of the certificate) the
person was convicted of an offence against section 234, 236, 243 or 244 of the
Migration Act 1958, or section 29A, 29B or 29D of the Crimes Act
1914, that was committed at any time before the grant of the certificate
(including a time before the making of the application); and
(b) the act or omission that constituted the offence was connected with
the person’s entry into Australia or the grant to the person of a visa or
of a permission to enter and remain in Australia.
(1B) Subsection (1A) does not apply to a person in respect of an offence
if the Minister is satisfied that the act or omission that constituted that
offence was not in any way (whether directly or indirectly) material to the
person becoming a permanent resident.
4 Subsection 50(2)
Omit “A prosecution”, substitute “Subject to subsection
(3), a prosecution”.
5 At the end of section 50
Add:
(3) If a person:
(a) is an Australian citizen pursuant to a certificate of Australian
citizenship; and
(b) made the application for the certificate after the commencement of
this subsection;
a prosecution of the person for an offence against subsection (1) in
connection with the person’s application for the certificate may be
commenced at any time.
Part
2—Amendment of the Migration Act 1958
6 Section 492
Omit “A prosecution”, substitute “Subject to subsection
(2), a prosecution”.
7 At the end of section 492
Add:
(2) A prosecution of a person for an offence against section 234, 236, 243
or 244 that is alleged to have been committed after the commencement of this
subsection may be instituted at any time.