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MIGRATION AMENDMENT REGULATIONS 2008 (NO. 8) (SLI NO 237 OF 2008)
EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 237
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2008 (No. 8)
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 regulations may be made pursuant to the provisions of the Act listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to amend the definition of ‘permanent humanitarian visa’, re-enact provisions relating to the Safe Third Country Memorandum of Understanding, clarify notification procedures and make a minor amendment to the eVisitor visa.
In particular, the Regulations include four schedules that:
· Schedule 1: amends the definition of a ‘permanent humanitarian visa’ to include reference to Resolution of Status (Class CD) visas to ensure that holders of these visa are able to access HECS-HELP or FEE-HELP assistance under the Higher Education Support Act 2003;
· Schedule 2: re-enacts the provisions relating to the Safe Third Country Memorandum of Understanding with the People’s Republic of China (these provisions ceased to be in effect by operation of law on 30 June 2008);
· Schedule 3: clarifies and provides greater certainty in some notification procedures to minimise errors and ensure visa applicants and visa holders are effectively notified of matters relevant to their dealings with the Department of Immigration and Citizenship; and
· Schedule 4: provides that a person whose Subclass 651 (eVisitor) visa is cancelled on certain grounds is affected by a risk factor for the purposes of Public Interest Criterion (PIC) 4013, meaning that an application for certain visas may not be made within three years unless compelling circumstances exist to justify the granting of the visa.
Details of the Regulations are set out in Attachment B.
Schedules 2, 3 and 4 commence on 5 December 2008. Schedule 1 commences retrospectively on 9 August 2008.
In relation to the amendments in Schedules 1 and 2, the Office of Best Practice Regulation’s Best Practice Regulation Preliminary Assessment was used to determine that there would be low compliance cost to business.
In relation to the amendments in Schedules 3 and 4, the Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklist were used to determine that there was no compliance cost on business or impact on competition in relation to the amendment.
The Department of Education, Employment and Workplace Relations was consulted in relation to the amendments in Schedule 1.
The Attorney-General’s Department, the United Nations High Commissioner for Refugees (Australia and New Zealand Regional Office) and the Department of Foreign Affairs and Trade were consulted in relation to the amendments in Schedule 2.
No consultation was necessary in relation to the amendments in Schedules 1, 3 and 4 because these amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT A
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. Subsection 5(1) of the Act provides, amongst other things, that ‘prescribed’ means prescribed by the Regulations.
In addition to subsection 504(1) of the Act, the following provisions may apply:
· subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations;
· subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas;
· subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
· subsection 91D(1), which provides that a country is a safe third country in relation to a non-citizen if the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and the non-citizen has a prescribed connection with the country;
· paragraph 116(1)(g), which provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder;
· subsection 119(2), which provides that if the Minister is considering cancelling a visa under section 116, then the holder of that visa must notified in the prescribed way;
· subsection 127(1), which provides that when the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way;
· subsection 129(2), which provides that if the Minister cancels a visa under section 128, he or she must give a notice in the prescribed way;
· section 132, which provides that when under section 131 the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way;
· subsection 501G(3); which provides that a notice under subsection 501G(1) (refusal or cancellation of visa) must be given in the prescribed manner; and
· paragraph 504(1)(e) which provides that the Governor-General may make regulations in relation to the giving of documents, the lodging of documents, or the service of documents.
ATTACHMENT B
Details of the Migration Amendment Regulations 2008 (No. 8)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2008 (No. 8).
Regulation 2 – Commencement
This regulation provides for regulations 1 to 3 and Schedule 1 of the Regulations to commence on 9 August 2008. The remainder of the Regulations commence on 5 December 2008.
Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1
Subregulation 3(1) provides that Schedule 1 (Amendment relating to Resolution of Status (Class CD) visas) amends the Principal Regulations.
Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to a Resolution of Status (Class CD) visa held on or after 9 August 2008.
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
Subregulation 4(1) provides that Schedule 2 (Amendments relating to a safe third country) amends the Principal Regulations.
Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa made on or after 5 December 2008.
Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3
Subregulation 5(1) provides that Schedule 3 (Amendment relating to giving of documents) amends the Principal Regulations.
Subregulation 5(2) provides that the amendments made by Schedule 3 apply in relation to a document given, dispatched or transmitted on or after 5 December 2008.
Regulation 6 - Amendment of Migration Regulations 1994 – Schedule 4
Subregulation 6(1) provides that Schedule 4 (Amendment relating to Subclass 651 (eVisitor) visas) amends the Principal Regulations.
Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made on or after 5 December 2008.
Schedule 1 – Amendment relating to Resolution of Status (Class CD) visas
Item [1] - Regulation 1.03, definition of permanent humanitarian visa, after paragraph (a)
This item makes a minor technical amendment to insert a reference to the Resolution of Status (Class CD) visa in a new paragraph (aa) in the definition of permanent humanitarian visa in regulation 1.03, in Division 1.2 of Part 1 of the Principal Regulations.
The Resolution of Status (Class CD) visa was inserted in new item 1127AA of Schedule 1 to the Principal Regulations in the Migration Amendment Regulations 2008 (No 5) as a consequence of the abolition of Temporary Protection Visas. Item 1127AA further provided that the subclass for the Resolution of Status (Class CD) visa was Subclass 851 (Resolution of Status) inserted into new part 851 of Schedule 2 to the Principal Regulations.
Following the commencement of the Migration Amendment Regulations 2008 (No. 5) it became apparent that Resolution of Status (Class CD) visa holders were not entitled to HECS-HELP or FEE-HELP assistance under the Higher Education Support Act 2003 (“the HES Act”). Section 90-5 of the HES Act provides for the citizenship or residency requirements a student must meet to be entitled to HECS-HELP assistance. Paragraph 90-5(1)(b) provides that a student will meet the requirements under the section if they are a 'permanent humanitarian visa holder’ who will be resident in Australia for the duration of the unit of study. Section 104-5 provides the equivalent provision in relation to FEE-HELP assistance. Schedule 1 to the HES Act defines a 'permanent humanitarian visa holder' as “the holder of a visa that is, or has at any time been, defined as a permanent humanitarian visa for the purposes of the regulations made under the Migration Act 1958.”
A ‘permanent humanitarian visa’ is defined in regulation 1.03, in Division 1.2 of Part 1 of the Principal Regulations. The insertion of new paragraph (aa) in this item provides that the Resolution of Status (Class CD) visa is a ‘permanent humanitarian visa’ and will therefore effectively enable a visa holder to be eligible for HECS-HELP or FEE-HELP assistance under the HES Act. The amendment refers to the class of visa (Resolution of Status (Class CD) visa) rather than the subclass (Subclass 851 Resolution of Status (Residence) visa) to avoid confusion arising from the existence of the previous Subclass 851 Resolution of Status visa under the Resolution of Status (Residence) (Class BL), that was repealed on 9 August 2008. The amendment will apply to the new holders of Subclass 851 Resolution of Status visas issued as a subclass of Resolution of Status (Class CD) but will not apply to subclass 851 Resolution of Status visas issued under Resolution of Status (Residence) (Class BL) visas that have different entitlements attached to them.
The Resolution of Status (Class CD) visa is currently not considered a permanent humanitarian visa as this amendment was not envisaged in the original amendments contained in the Migration Amendment Regulations 2008 (No. 5). The policy intention behind the creation of the new Resolution of Status (Class CD) visa however, was, and remains, that a holder of this class is eligible for the same social security entitlements as holders of Subclass 866 (Protection) visas. This minor amendment ensures that this policy intention behind the original amendments in the Migration Amendment Regulations 2008 (No. 5) is provided for in the Principal Regulations.
Schedule 2 – Amendments relating to a safe third country
Item [1] – Regulation 2.12A, including the notes
This item substitutes regulation 2.12A in Part 2 of the Principal Regulations with new regulation 2.12A.
The purpose of this amendment is to renew regulation 2.12A, because in accordance with subsection 91D(4) of the Migration Act 1958 (the Act), regulation 2.12A ceased to be in force on 30 June 2008 (the end of 2 years after the regulation commenced). The lapse of time between the cessation of regulation 2.12A and the proposed renewal of regulation 2.12A is not anticipated to adversely affect any persons.
New regulation 2.12A relates to a Memorandum of Understanding (MOU) between Australia and the People's Republic of China (PRC), signed on 25 January 1995, in which Australia and PRC agreed that, in relation to the recent and possible future unauthorised arrivals in Australia of Vietnamese refugees settled in PRC, they will engage in friendly consultations and seek proper settlement of the issue through agreed procedures. Australia and the PRC agreed that Vietnamese refugees who have settled in PRC and are returned to PRC under agreed verification arrangements, will continue to receive the protection of the Government of PRC. The MOU was created in the spirit of international cooperation and burden sharing and maintaining and further developing the friendly relations between PRC and Australia.
New regulation 2.12A provides a slightly different form to the recently expired regulation 2.12A. In particular, subregulations 2.12A(1) and (2) provide for greater clarity and ease of reading. However, the change in form is not intended to change the legal effect of the regulation.
New subregulation 2.12A(1) prescribes, for paragraph 91D(1)(a) of the Act, the PRC as a safe third country in relation to certain Vietnamese refugees settled in PRC, and their close relatives or dependents, who are covered by the agreement between Australia and PRC (see the notes on new subregulation 2.12A(3) below, for further details concerning the agreement), and who entered Australia without lawful authority on or after 1 January 1996.
New subregulation 2.12A(2) provides that, for paragraph 91D(1)(b) of the Act, a person mentioned in new subregulation 2.12A(1) has a prescribed connection with PRC if the person, or a parent of the person, resided in the PRC at any time before the person entered Australia.
New paragraph 2.12A(3)(a) provides that the term “agreement between Australia and PRC” means the English text of the agreement constituted by the MOU set out in Schedule 11 to the Principal Regulations, together with the exchange of letters between representatives of Australia and PRC dated 18 September 2008 and 7 October 2008, the text of which would be set out in Schedule 12 to the Principal Regulations. The MOU was signed by PRC and Australia on 25 January 1995. The MOU covers Vietnamese refugees who were settled in PRC since 1979 and provided with effective protection and assistance by the PRC government. The effect of the letters of 18 September 2008 and 7 October 2008 is to confirm that the MOU is once again in force. The text of these letters are inserted in Schedule 2 to the Principal Regulations by item [2] of Schedule 2.
New paragraph 2.12A(3)(b) provides that the use of the word Vietnamese in this context is a reference to nationality or country of origin, and is not an ethnic description.
The notes to new regulation 2.12A mirror and update the notes to the recently expired regulation 2.12A. Note 1 explains that the term PRC is defined in regulation 1.03. Note 2 explains that this new regulation 2.12A ceases to be in force at the end of 4 December 2010, by operation of subsection 91D(4) of the Act.
The effect of regulation 2.12A is that non-citizens covered by the regulation and having the prescribed connection with PRC are prevented by operation of section 91E of the Act from making a valid application for a protection visa in Australia.
Item [2] – Schedule 12
This item substitutes the entirety of Schedule 12 to the Principal Regulations with new Schedule 12.
New Schedule 12 contains the text of the letters exchanged between representatives of Australia and PRC continuing the Memorandum of Understanding between Australia and PRC in relation to Vietnamese refugees. The subject of that Memorandum of Understanding. Part 1 of new Schedule 12 contains the letter dated 18 September 2008 from the representative of Australia to the representative of PRC. Part 2 of new Schedule 12 contains the letter dated 7 October 2008 from the representative of PRC to the representative of Australia. These letters replace the previous letters dated 17 March 2006 and 20 March 2006, respectively.
Schedule 3 – Amendments relating to giving of documents
Item [1] – Regulation 2.54, heading
This item substitutes existing heading of regulation 2.54 in Division 2.10 of Part 2 of the Principal Regulations with a new heading entitled “Definitions for Division 2.10”.
The current heading is expressed in the singular as it contains only one definition. However, item [2] of this Schedule inserts a new definition of “carer of the minor” into regulation 2.54 so the heading to this regulation needs to be changed to the plural.
Item [2] – Regulation 2.54, before definition of document
This item inserts a definition of “carer of the minor” into regulation 2.54 in Division 2.10 of Part 2 of the Principal Regulations.
This item provides that for the purposes of Division 2.10 of the Principal Regulations, the term “carer of the minor” means an individual who is at least 18 years of age and who the Minister reasonably believes:
· has day-to-day care and responsibility for the minor; or
· works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Item [3] – Subregulation 2.55(3)
This item omits the word “For” and inserts the words “Subject to subregulation (3A), for” at the start of subregulation 2.55(3) in Division 2.10 of Part 2 of the Principal Regulations.
This is a technical amendment which alerts the reader to new subregulation 2.55(3A), inserted by item [5] of this Schedule.
Item [4] – Subregulation 2.55(3), at the foot
This item inserts a new note at the foot of subregulation 2.55(3) in Division 2.10 of Part 2 of the Principal Regulations.
This new note alerts the reader to the fact that subregulation (3A) (inserted by item [5] of this Schedule) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors. Subregulation 2.55(3) deals with giving documents mentioned in paragraph (1)(a) and (c) where the person who is to receive the document is not a minor.
Item [5] – After subregulation 2.55(3)
This item inserts new subregulation 2.55(3A) in Division 2.10 of Part 2 of the Principal Regulations.
New subregulation 2.55(3A) sets out new requirements for the Minister in giving documents mentioned in paragraph 2.55(1)(a) or (c) to minors. Paragraph 2.55(1)(a) provides for the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act. Paragraph 2.55(1)(c) provides for the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
New subregulation 2.55(3A) provides that a document mentioned in paragraph 2.55(1)(a) or (c) must be given by:
The requirements in current subregulation 2.55(3) will continue to apply to documents mentioned in paragraph 2.55(1)(a) or (c) where the person is not a minor.
The purpose of new subregulation 2.55(3A) is to ensure consistency with the amendments made to the notification provisions in the Act by the Migration Amendment (Notification Review) Act 2008 which will also commence by Proclamation on 5 December 2008. It will bring certainty as to who the Minister (or his or her delegate) must notify where the client is a minor.
Item [6] – Subregulation 2.55(4)
This item omits the word “For” and inserts the words “Subject to subregulation (4A), for” at the start of subregulation 2.55(4) in Division 2.10 of Part 2 of the Principal Regulations.
This is a technical amendment which alerts the reader to new subregulation 2.55(4A), inserted by item [8] of this Schedule.
Item [7] – Subregulation 2.55(4), at the foot
This item inserts a new note at the foot of subregulation 2.55(4) in Division 2.10 of Part 2 of the Principal Regulations.
This new note alerts the reader to the fact that subregulation (4A) (inserted by item [8] of this Schedule) deals with giving documents mentioned in paragraph (1)(b) to minors. Subregulation 2.55(4) deals with giving documents mentioned in paragraph (1)(b) where the person who is to receive the document is not a minor.
Item [8] – After subregulation 2.55(4)
This item inserts new subregulations 2.55(4A), (4B) and (4C) in Division 2.10 of Part 2 of the Principal Regulations.
New subregulation 2.55(4A) sets out new requirements for the Minister in giving documents mentioned in paragraph 2.55(1)(b) to minors. Paragraph 2.55(1)(b) provides for the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act. Section 501G deals with notification of a decision to refuse to grant a visa or cancel a visa on character grounds. Subsections 501(1), (2) and 501A(2) and sections 501B and 501F provide generally for refusal and cancellation of a visa on character grounds.
New subregulation 2.55(4A) provides that a document mentioned in paragraph 2.55(1)(b) must be given by one of the ways mentioned in subregulation (3A) (inserted by item [5] of this Schedule), that is, by:
In addition to these requirements, new subregulation 2.55(4A) requires that the Department of Immigration and Citizenship (DIAC) must try to find the minor if the minor has held the visa for at least one year. This requirement currently exists in subregulation 2.55(4), the general provision for giving documents mentioned in 2.55(1)(b). This ensures that DIAC must make a reasonable effort to locate the minor before proceeding with cancellation of their visa.
The requirements in current subregulation 2.55(4) will continue to apply to documents mentioned in paragraph 2.55(1)(b) where the person is not a minor.
The purpose of new subregulation 2.55(4A) is to ensure consistency with the amendments made to the notification provisions in the Act by the Migration Amendment (Notification Review) Act 2008 which will also commence by proclamation on 5 December 2008. It will bring certainty as to who the Minister (or his or her delegate) must notify where the client is a minor. This is particularly important where the child reaches the age of majority where there is a need to clarify what the change over age is for who should be notified.
New subregulation 2.55(4B) provides that where the Minister gives a document to the carer of the minor, the Minister is taken to have given the document to the minor.
New subregulation 2.55(4C) provides that even where the Minister gives a document to the carer of the minor, this does not prevent the Minister giving the minor a copy of the document.
Item [9] – After subregulation 2.55(8)
This item inserts new subregulation 2.55(9) in Division 2.10 in Part 2 of the Principal Regulations.
New subregulation 2.55(9) provides that if the Minister purports to give a document to a person by a method specified in regulation 2.55 of the Principal Regulations but makes an error in doing so, and the person nonetheless receives the document or a copy of the document, then the Minister is taken to have given the document to the person. Generally, the person will be taken to have received the document at the time specified in the relevant regulation in respect of the method used. However, if the person can show that he or she received the document at a later time, then he or she is taken to have received the document at that later time.
The purpose of new subregulation 2.55(9) is to ensure consistency with the amendments made to the notification provisions in the Act by the Migration Amendment (Notification Review) Act 2008 which will also commence by Proclamation on 5 December 2008. This subregulation will also ensure that the deemed time of notification provisions within regulation 2.55 will operate despite non-compliance with a procedural requirement for giving a document to a person where the person has actually received the document. This new subregulation will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.
Schedule 4 – Amendments relating to Subclass 651 (eVisitor) visas
Item [1] – Schedule 4, Part 1, paragraph 4013(2)(d)
This item makes a minor technical amendment to insert a reference to paragraph 2.43(1)(ka) in paragraph 4013(2)(d) of Part 1 of Schedule 4 to the Principal Regulations.
Paragraph 2.43(1)(ka) provides that for the purposes of paragraph 116(1)(g) of the Act, the Minister may cancel a Subclass 651 (eVisitor) visa if he or she is satisfied that despite the grant of the visa, the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted.
This amendment provides, in effect, that where a Subclass 651 (eVisitor) visa previously held by a person was cancelled under section 116 of the Act because the Minister was satisfied that the ground prescribed in paragraph 2.43(1)(ka) applied to the person, the person will be affected by a risk factor for the purposes of Public Interest Criterion (PIC) 4013. PIC 4013 is a time of decision criterion which applies to a number of temporary visas, including visitor visas. It provides that if the applicant is affected by a risk factor mentioned in the PIC, the application must be made more than three years after the cancellation of the visa, unless the Minister is satisfied that compassionate or compelling circumstances affecting the interests of Australia, or the interests of an Australian citizen or Australian permanent resident, justify the granting of the visa within three years.
This amendment ensures that if a Subclass 651 (eVisitor) visa is cancelled under section 116 because the Minister was satisfied that the ground prescribed in 2.43(1)(ka) applied to the person, that person cannot apply for certain visas for 3 years from cancellation. However, if the Minister is satisfied that compassionate or compelling circumstances exist affecting the interests of Australia or the interests of an Australian citizen or Australian permanent resident.