Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 9) 2002 NO. 347

STATUTORY RULES 2002 No. 347

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2002 (No. 9)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

•       subsection 46(2) of the Act provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations, the application is taken to have been validly made;

•       subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and

•       subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, and how and where an application for a visa of a specified class must be made.

The purpose of the Regulations is to amend the Migration Regulations 1994 to require nationals and residents of gazetted foreign countries to make applications for certain visas to gazetted addresses. This allows, in emergency situations which make it difficult or impossible to lodge applications in certain countries, certain visa applications to be made at a different address.

Details of the Regulations are set out in the attachment.

The Regulations commence on gazettal.

0211923A-021212Z

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 9).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on gazettal.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Migration Regulations).

Schedule 1 - Amendment

Item [1] - After regulation 2.10

This item inserts new regulation 2.10AA in Part 2 to the Migration Regulations.

New regulation 2.10AA provides that despite regulation 2.10 (about where applications for visas must be made), and any provision in Schedule 1 listing the requirements to make a valid visa application, certain applications must be made by:

•       posting the application (with the correct pre-paid postage) to a post office box address specified for the visa by Gazette Notice; or

•       having the application delivered by a courier service to an address specified for the visa by Gazette Notice.

This regulation only applies to a person who is:

•       outside Australia;

•       a citizen of, or a person residing in, a foreign country which is specified by Gazette Notice; and

•       in that foreign country.

In addition, the regulation only applies to an application for visas specified by Gazette Notice. Internet applications are excluded from the operation of the regulation because they remain unaffected by the emergency situations that these Regulations are intended to cover, such as embassy closures.

Family members residing in the same foreign country specified by Gazette Notice are picked up by these Regulations whether they are nationals of the country or not. However, regulation 2.10AA does not apply to nationals of a gazetted foreign country who are not in that foreign country at the time of making an application for a gazetted visa.

Any visa application made under new regulation 2.10AA is taken to have been made outside Australia. In this way, Schedule 2 criteria applying to applications made outside Australia continue to apply even where the application is posted, or delivered, to an address in Australia.

The amendments are intended to be used where it becomes impracticable, in emergency situations, for a diplomatic, consular or migration office, maintained by or on behalf of the Commonwealth outside Australia, to accept visa applications.

New regulation 2.10AA has been drafted to ensure maximum flexibility to respond to emergency situations, including security threats to migration offices outside Australia. The response to individual emergencies may differ depending on the circumstances prevailing at that time and in that place.