MIGRATION AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 33 OF 2008) EXPLANATORY STATEMENT

EXPLANATORY STATEMENT

Select Legislative Instruments 2008 No. 33

Issued by the authority of the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2008 (No. 1)

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

· subsection 504(2) of the Act, which provides that despite section 14 of the Legislative Instruments Act 2003 the regulations may provide for matters to be specified by the Minister in an instrument in writing made after the commencement of the regulations. Subsection 504(2) provides a contrary intention to the operation of section 14 of the Legislative Instruments Act 2003 which otherwise provides that a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or from time to time.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to allow applicants to be granted a Subclass 200 (Refugee) or Subclass 201 (In-country Special Humanitarian) visa if they are in a specified class of persons and are at risk of harm for a reason related to being in that class. Subclass 200 generally provides for applicants who are not in their home country and are subject to persecution. Subclass 201 applies to applicants who are in their home country and are subject to persecution.

The Regulations initially facilitate certain locally engaged Iraqi citizens, who have worked collaboratively with the Australian Defence Forces (the ADF) in Iraq and are at risk of harm because of this work, to access a permanent humanitarian visa provided all other necessary criteria are satisfied. These applicants are included in a separately financed humanitarian intake.

The Regulations, however, are designed to accommodate future circumstances in other countries where local citizens provide assistance to, for example, the ADF, the Australian Federal Police, or other departments or agencies of the Australian Government. In such circumstances, the Minister for Immigration and Citizenship would be required to consult with the Prime Minister, the Minister for Finance and Deregulation and any other relevant Minister that has an interest in, or is affected by, the decision to specify a new class of persons.

Details of the Regulations are set out in the Attachment.

The Regulations commenced on the day of Registration.

The Office of Best Practice Regulation’s Business compliance Cost Calculator was used to determine that there was no compliance cost to business or impact on competition.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

ATTACHMENT

Details of the Migration Amendment Regulations 2008 (No. 1) Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2008 (No. 1).

Regulation 2 - Commencement

These Regulations commence on the day they are registered.

Regulation 3 – Amendment of Migration Regulations 1994

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

Regulation 4 – Transitional

This regulation provides that the amendments made by Schedule 1 apply in relation to an application for a visa made on or after the date on which the Regulations commence.

Schedule 1 – Amendments

Item [1] – Schedule 2, clause 200.111, before definition of Subclass 200 visa

This item amends clause 200.111 of Part 200 of Schedule 2 to the Principal Regulations to insert the new defined term “relevant Minister”. Part 200 provides the criteria for the grant of a Subclass 200 (Refugee) visa.

This item defines the new term, “relevant Minister”, to mean any of the following ministers: the Attorney-General; the Minister for Defence; the Minister for Foreign Affairs; the Minister for Home Affairs; or the Minister for Immigration and Citizenship.

The amendment made by this item is necessary to give effect to new subclauses 200.211(1A) and (1B), inserted by item [3] of this Schedule, which includes the requirement that the “relevant Minister” certifies matters specified in new paragraph 200.211(1A)(b). For new paragraph 200.211(1A)(a), the relevant Minister in each circumstance will vary depending on the description of the class of persons specified by the Minister in writing. The “relevant Minister” will be the Minister responsible for the department or agency which has engaged the applicant or to whom the applicant has provided assistance. New subclause 200.211(1B) relates to consultation the Minister for Immigration and Citizenship must conduct with the Prime Minister, the Minister for Finance and Deregulation and any other interested or affected relevant Minister before specifying a class of persons under paragraph 200.211(1A)(a).

Item [2] – Schedule 2, after paragraph 200.211(1)(a)

This item inserts new paragraph 200.211(1)(aa) in Part 200 of Schedule 2 to the Principal Regulations.

New paragraph 200.211(1)(aa) provides that, as an alternative to having to meet the requirements in existing paragraphs 200.211(1)(a) or (b), an applicant may meet the requirements of new subclause 200.211(1A). New subclause (1A) is inserted in the Principal Regulations by item [3] of this Schedule.

Item [3] – Schedule 2, after subclause 200.211(1)

This item inserts new subclauses 200.211(1A) and (1B) in clause 200.211 of Part 200 of Schedule 2 to the Principal Regulations.

New subclause 200.211(1A) provides that the applicant meets the requirements of this subclause if:

· the Minister has specified, in an instrument in writing, one or more classes of persons; and

· a “relevant Minister” (see item [1] of this Schedule) has certified that the applicant is in one of those classes of persons and is at risk of harm for a reason, or reasons, that relate to the applicant being in that class of persons.

New subclause 200.211(1B) provides that, before making an instrument in writing for new paragraph 200.211(1A)(a), the Minister for Immigration and Citizenship has consulted with the Prime Minister, the Minister for Finance and Deregulation, and any other relevant Minister that has an interest in the specification of that class of persons or that is affected by the specification.

An instrument in writing for the purpose of new paragraph 200.211(1A)(a) may, for example, specify, as a characteristic of a class of persons, that a person is employed by or works collaboratively with the Australian Government.

Item [4] – Schedule 2, paragraph 200.311(a)

This item substitutes paragraph 200.311(a) of Part 200 of Schedule 2 to the Principal Regulations with new paragraph 200.311(a).

An applicant seeking to satisfy the secondary criteria for the grant of a Subclass 200 (Refugee) visa is required to meet either new paragraph 200.311(a) or existing paragraph 200.311(b) at the time of application. New paragraph (a) makes it a requirement that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211(1)(a) or new paragraph 200.211(1)(aa) as inserted by item [2] of this Schedule.

Item [5] – Schedule 2, paragraph 200.321(a)

This item substitutes paragraph 200.321(a) of Part 200 of Schedule 2 to the Principal Regulations with new paragraph 200.321(a).

An applicant seeking to satisfy the secondary criteria for the grant of a Subclass 200 (Refugee) visa is required to meet either new paragraph 200.321(a) or existing paragraph 200.321(b) at the time of decision. New paragraph (a) makes it a requirement that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of either paragraph 200.211(1)(a) or (aa)), is the holder of a Subclass 200 visa.

Item [6] – Schedule 2, clause 201.111, before definition of Subclass 201 visa

This item amends clause 201.111 of Part 200 of Schedule 2 to the Principal Regulations to insert the new defined term “relevant Minister”. Part 201 provides the criteria for the grant of a Subclass 201 (In-country Special Humanitarian) visa.

The amendment made by this item is necessary to give effect to new subclauses 201.211(1A) and (1B), inserted by item [8] of this Schedule, which includes the requirement that the “relevant Minister” certifies matters specified in new paragraph 201.211(1A)(b). For new paragraph 201.211(1A)(a), the relevant Minister in each circumstance will vary depending on the description of the class of persons specified by the Minister in writing. The “relevant Minister” will be the Minister responsible for the department or agency which has engaged the applicant or to whom the applicant has provided assistance. New subclause 201.211(1B) relates to consultation the Minister for Immigration and Citizenship must conduct with the Prime Minister, the Minister for Finance and Deregulation and any other interested or affected relevant Minister before specifying a class of persons under paragraph 201.211(1A)(a).

Item [7] – Schedule 2, after paragraph 201.211(1)(a)

This item inserts new paragraph 201.211(1)(aa) in Part 201 of Schedule 2 to the Principal Regulations.

New paragraph 201.211(1)(aa) provides that, as an alternative to having to meet the requirements in existing paragraphs 201.211(1)(a) or (b), an applicant may meet the requirements of new subclause 201.211(1A). New subclause (1A) is inserted in the Principal Regulations by item [8] of this Schedule.

Item [8] – Schedule 2, after subclause 201.211(1)

This item inserts new subclauses 201.211(1A) and (1B) in clause 201.211 of Part 201 of Schedule 2 to the Principal Regulations.

New subclause 201.211(1A) provides that the applicant meets the requirements of this subclause if:

· the Minister has specified, in an instrument in writing, one or more classes of persons; and

· a “relevant Minister” (see item [6] of this Schedule) has certified that the applicant is in one of those classes of persons and is at risk of harm for a reason, or reasons, that relate to the applicant being in that class of persons.

New subclause 201.211(1B) provides that, before making an instrument in writing for new paragraph 201.211(1A)(a), the Minister for Immigration and Citizenship has consulted with the Prime Minister, the Minister for Finance and Deregulation, and any other relevant Minister that has an interest in the specification of that class of persons or that is affected by the specification.

An instrument in writing for the purpose of new paragraph 201.211(1A)(a) may, for example, specify, as a characteristic of a class of persons, that a person is employed by or works collaboratively with the Australian Government.

Item [9] – Schedule 2, paragraph 201.311(a)

This item substitutes paragraph 201.311(a) of Part 201 of Schedule 2 to the Principal Regulations with new paragraph 201.311(a).

An applicant seeking to satisfy the secondary criteria for the grant of a Subclass 201
(In-country Special Humanitarian) visa is required to meet either new paragraph 201.311(a) or existing paragraph 201.311(b) at the time of application. New paragraph (a) makes it a requirement that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 201.211(1)(a) or new paragraph 201.211(1)(aa) as inserted by item [7] of this Schedule.

Item [10] – Schedule 2, paragraph 201.321(a)

This item substitutes paragraph 201.321(a) of Part 201 of Schedule 2 to the Principal Regulations with new paragraph 201.321(a).

An applicant seeking to satisfy the secondary criteria for the grant of a Subclass 201
(In-country Special Humanitarian) visa is required to meet either new paragraph 201.321(a) or existing paragraph 201.321(b) at the time of decision. New paragraph (a) makes it a requirement that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of either paragraph 201.211(1)(a) or (aa)), is the holder of a Subclass 201 visa.

Commonwealth Numbered Regulations - Explanatory Statements

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