Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATION 2012 (NO. 8) (SLI NO 301 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 301

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulation 2012 (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 listed in Attachment A.

 

The purpose of the Regulation is to amend the Migration Regulations 1994 ('the Principal Regulations') to strengthen and improve immigration policy.  In particular, the Regulation amends the Principal Regulations to:

 

*         amend the 'when visa is in effect' provisions for the following bridging visas to provide certainty about when a bridging visa ceases to be in effect following notification by the review authority that the merits review application was not made in accordance with the law governing the making of applications to that review authority:

 

o   Subclass 010 (Bridging A) visa ('BVA')

o   Subclass 020 (Bridging B) visa ('BVB')

o   Subclass 030 (Bridging C) visa ('BVC')

o   Subclass 050 (Bridging (General)) visa ('BVE 050')

o   Subclass 051 (Bridging (Protection Visa Applicant)) visa ('BVE 051')

 

 

 

 

 

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the measures in the Regulation are compatible with human rights as it does not raise any human rights issues.  A copy of the Statement is at Attachment B.

 

Details of the Regulations are set out in Attachment C.

 

The Office of Best Practice Regulation ('the OBPR') has been consulted in relation to amendments made by the Regulation.  The OBPR considers that the amendments in Schedules 1 and 3 are machinery of government in nature and that the amendments in Schedule 2 have a minor impact on business or the not-to-profit sector.  The OBPR advises that no further analysis (in the form of a Regulation Impact Statement) is required for this Regulation.  The OBPR consultation references are:

 

 

In relation to the amendments made by Schedule 1 to the Regulation, as the cessation of a bridging visa held on the basis of a merits review application, or a substantive visa application that is not finally determined, can be linked to the notification of a review authority, the Department of Immigration and Citizenship ('the Department') has consulted with the Migration Review Tribunal and the Refugee Review Tribunal ('the MRT/RRT') in relation to these amendments.  The MRT/RRT did not express any concerns on the amendments made by the Regulation.   

 

In relation to the amendments made by Schedule 2 to the Regulation, no further consultation was undertaken by the Department as the Regulation provides for the adjustment to Visa Application Charges (VACs) announced by the Government in the MYEFO statement on 22 October 2012. The amendments made by Schedule 2 to the Principal Regulations are minor or machinery in nature and do not substantially alter existing arrangements.

 

In relation to the amendments made by Schedule 3 to the Regulations, the Department chairs an Interdepartmental Committee (IDC) on Biometrics in Offshore Visa Processing which meets periodically.  Other members of the IDC are the Australian Customs and Border Protection Service, Attorney-General's Department, Australian Federal Police, Department of Foreign Affairs and Trade, and Department of Prime Minister and Cabinet.  Offshore mobile biometrics collection capability was a specific agenda item at meetings of the IDC held in October 2011 and February 2012, and its expansion was discussed and supported by IDC members.   At the meeting in February, IDC members were given a demonstration of the Department's mobile biometrics collection units.

 

No further consultation outside the IDC was undertaken, as agencies with an interest in offshore biometrics collection are already represented on and provided input through the IDC.  Outside of the IDC, no external stakeholders, apart from offshore visa applicants, can be easily identified and so broader consultation was not possible.  In any case, the amendment is of a minor nature, in practice, because it reflects existing government policy and practice to collect personal identifiers from visa applicants outside of Australia.

 

The Act specifies no conditions that need to be satisfied before the power to make Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 


ATTACHMENT A

 

 

AUTHORISING PROVISIONS

 

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 29(2) of the Act, which relevantly provides that a visa to travel to, enter and remain in Australia may be one to:

 

o   travel to and enter Australia during a prescribed or specified period; and

o   if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely;

 

*         Subsection 29(3) of the Act, which relevantly provides that a visa to travel to, enter and remain in Australia may be one to:

 

o   travel and enter Australia during a prescribed or specified period; and

o   if, and only if, the holder travels to and enters during that period:

 

§  remain in it during a prescribed or specified period or indefinitely; and

§  if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period;

 

*         subsection 40(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;

 

*         subsection 40(3) of the Act, which provides that, without limiting subsection 40(1), if:

o   prescribed circumstances exist; and

o   the Minister has not waived the operation of this subsection in relation to granting a visa to the person

the circumstances under subsection 40(1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa;

 

*         subsection 40(5) of the Act, which provides that subsection 40(4) does not apply, in circumstances prescribed for the purposes of subsection 40(5), if the personal identifier is of a prescribed type and the person:

 

o   provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

o   complies with any further requirements that are prescribed relating to the provision of the personal identifier.

 

*         Section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application will be a valid visa application;

 

*         Subsection 45B(1) of the Act, which provides that the amount of the visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.  The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997; and

 

*         Section 45C of the Act, which deals with regulations about the visa application charge.  In particular:

 

o   subsection 45C(1) of the Act, which provides that regulations may provide that the visa application charge may be payable in instalments, and specify how those instalments are to be calculated and when instalments are payable; and

o   paragraph 45C(2)(a) of the Act, which relevantly provides that the regulations may make provision for and in relation to various matters, including the recovery of the visa application charge in relation to visa applications and the way, including the currency, in which visa application charge is to be paid.

 

*         subsection 46(2C) of the Act, which provides that subsection 46(2B) does not apply, in circumstances prescribed for the purposes of subsection 46(2C), if the personal identifier is of a prescribed type and the applicant:

 

o   provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

o   complies with any further requirements that are prescribed relating to the provision of the personal identifier.

 

*         Section 73 of the Act, which provides that, if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia, during a specified period or until a specified event happens.

 

*         Subsection 82(7A) of the Act, which provides that a bridging visa permitting the holder to remain in, or travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.

 

The following provisions of the Migration (Visa Application) Charge Act 1997 may also apply:

*                     Section 4, which provides that a visa application charge payable under section 45A of the Act is payable; and

*                     Section 5, which provides for the visa application charge limit and for its method of calculations in later financial years.

 


ATTACHMENT B

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the International instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

*         Schedule 1 - Amendments relating to bridging visas

 

Overview of the amendments

 

The Migration Regulations 1994 ('the Principal Regulations') prescribe a number of ways that a bridging visa can cease to be in effect.  For a bridging visa that is held by a non-citizen in association with a merits review application, the Regulations provide that it will cease 28 days after the non-citizen withdraws the merits review application, or 28 days after notification of the decision of the review authority.

 

Currently, because the Principal Regulations do not separately provide for cessation of a bridging visa in situations where the relevant review tribunal finds that it has no jurisdiction (because the review application was not properly made, i.e. invalid), the Department of Immigration and Citizenship ('the Department') has interpreted "decision of the review authority" to mean that it includes a "decision" of the tribunal that it has no jurisdiction.  This enables the Department to rely on the relevant tribunal's notification of no jurisdiction to cease the associated bridging visa held by the non-citizen.

 

The Department wishes to clarify and reinforce this interpretation by amending the Principal Regulations to specifically address this issue.  That is, the Regulations will be amended to clarify when a bridging visa held in association with an invalid merits review application ceases.  This avoids the need to continue to rely on the Department's current interpretation.

 

Human rights implications

 

The amendments do not engage any of the applicable rights or freedoms enunciated in the seven core international human rights treaties.

 

Conclusion

 

The amendments are compatible with human rights as it does not raise any human rights issues.


Schedule 2 - Amendments relating to Visa Application Charge

 

Overview of the amendments

 

In the 2012-2013 Mid Year Economic and Fiscal Outlook statement made on 22 October 2012, the Government announced that the visa application charges ('VACs') for a target group of visa subclasses will be increased from 1 January 2013.

The following visa subclasses will be affected by the increase:

 

 

The amount of the increases does not exceed the applicable charge limits set out in the Migration (Visa Application) Charge Act 1997.

 

The instrument makes amendments to the current values specified in the Principal Regulations, Schedule 1 to adjust fees and VACs.

 

Human rights implications

 

The Department has considered the seven key international treaties.  The amendments do not engage any of the applicable rights or freedoms there under. 

 

Conclusion

 

The amendments are compatible with human rights as it does not raise any human rights issues.

 

*         Schedule 3 - Amendments relating to biometric assessment

 

Overview of the Legislative Instrument

 

Since late November 2011, the Department has had the capability to collect personal identifiers (facial photographs and fingerprints) in a mobile capacity, using mobile biometrics collection kits.  These kits can be deployed anywhere.  While these kits can be used when an applicant provides their personal identifiers voluntarily, there is currently no power for an officer using a mobile biometrics collection kit to require the provision of personal identifiers by a visa applicant at a location that is not specified in an instrument in writing.

 

At present, when an officer requires an offshore visa applicant to provide their personal identifiers, paragraph 2.04(3)(b) and subparagraph 2.08AC(4)(a)(ii) of the Principal Regulations provide for their collection at "places" (i.e. addresses) specified by the Minister for Immigration and Citizenship or a departmental delegate in an instrument in writing.  These places are specified in a written legislative instrument, in accordance with the above provisions (see Federal Register of Legislative Instruments reference number: F2012L00919), and currently consist of certain visa application centres operated by service delivery partners and certain Australian overseas missions.

 

In some situations it is difficult or impractical to specify a place in an instrument in writing.  This includes circumstances involving locations with safety concerns or refugee camps, where an officer may need to undertake biometrics collection at different locations in the camp on the same or different visits (depending on conditions), or where specific addresses may be difficult to define.  The need to specify places for biometrics collection under the current legislative framework also does not provide the flexibility to deal with unusual or emergency situations or the unexpected closure of a visa application centre.

 

The Department is seeking to amend paragraph 2.04(3)(b) and subparagraph 2.08AC(4)(a)(ii) of the Principal Regulations to enable the collection of personal identifiers in a mobile capacity from offshore visa applicants at places that are not specified in an instrument in writing.  This will be achieved by enabling the provision of personal identifiers to an officer located offshore or to a person in a class of persons specified by the Minister in an instrument in writing, as an alternative to the provision of personal identifiers at a specified place.  The provision for the Minister to specify a class of persons in an instrument in writing is designed to accommodate possible future arrangements, where certain contractors who are not officers may be engaged to collect personal identifiers.

 

The new provisions apply only to offshore visa applicants.

 

Human rights implications

 

The amendments do not engage any of the applicable rights or freedoms contained in the seven core international human rights treaties.

 

Conclusion

 

The amendments are compatible with human rights because it does not raise any of the rights articulated in the seven core international human rights treaties.

 


ATTACHMENT C

 

 

Details of the Migration Amendment Regulation 2012 (No. 8)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment Regulation 2012 (No. 8).

 

Section 2 - Commencement

 

This section provides that the Regulation commences on 1 January 2013.

 

Section 3 - Amendment of Migration Regulations 1994

 

This section provides that Schedules 1 to 4 to the Regulation amends the Migration Regulations 1994 ('the Principal Regulations').

 

Schedule 1 - Amendments relating to bridging visas

 

Items [1] to [4] - Schedule 2, subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii)

 

These items substitute:

 

*                subparagraph 010.511(b)(iii) in Part 010 (Bridging A) in Schedule 2 in the Regulations;

*                subparagraph 020.511(b)(iii) in Part 020 (Bridging B) in Schedule 2 in the Regulations;

*                subparagraph 030.511(b)(iii) in Part 030 (Bridging C) in Schedule 2 in the Regulations; and

*                subparagraph 050.511(b)(iii) in Part 050 (Bridging (General)) in Schedule 2 in the Regulations.

 

Among other things, Part 010 provides for when a Subclass 010 (Bridging A) visa ('BVA') ceases to be in effect.  Similarly, Part 020 provides for when a Subclass 020 (Bridging B) visa ('BVB') ceases to be in effect, Part 030 provides for when a subclass 030 (Bridging C) visa ('BVC') ceases to be in effect and Part 050 provides for when a Subclass 050 (Bridging (General)) visa ('BVE 050') ceases to be in effect.

 

One of the bases on which a person may be granted a BVA, BVB, BVC or BVE 050 is that the person has made an application for a substantive visa that has not been finally determined (that is, the decision in respect of the application is still subject to review by the Migration Review Tribunal ('the MRT') or the Refugee Review Tribunal ('the RRT') or the time period within which a person may apply for review has not ended). A substantive visa is defined in subsection 5(1) of the Migration Act 1958 ('the Act') as a visa other than a bridging visa, a criminal justice visa or an enforcement visa.  A person can be granted a bridging visa on the basis of having made an application for a substantive visa so that, if they hold no other substantive visa, they will hold that bridging visa and be a lawful non-citizen in Australia, pending a decision on the substantive visa they applied for.

 

A non-citizen in Australia without a visa that is in effect is an unlawful non-citizen and must be taken into immigration detention.

 

Subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii) previously provided for when a BVA, BVB, BVC or BVE 050 ceases to be in effect where it has been granted on the basis of the visa holder having applied for a substantive visa and that application had not been finally determined.  Those subparagraphs previously provided that those bridging visas permit the holder to stay in Australia until:

 

*                if the substantive visa application is refused and the holder applies for merits review of that refusal - 28 days after notification of the decision of:

 

o   the review authority; or

o   if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies - 28 days after notification of the decision of that other review authority.

 

Accordingly, under the previous provisions, where the holder of a bridging visa applied for merits review of a decision to refuse a substantive visa application, the bridging visa ceases 28 days after the review authority notifies the visa holder of its decision.  However, if the visa holder can apply to a second review authority for review of the first review authority's decision, and so applies, then the bridging visa ceases 28 days after notification of the decision of the second review authority.

 

The term 'review authority' is defined in regulation 1.03 of the Principal Regulations to mean the MRT and, for BVAs, BVBs, BVCs, Bridging D (Class WD) visas and Bridging E (Class WE) visas, includes the RRT.

 

The substituted subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii) provide that, for bridging visas granted on the basis of the visa holder having applied for a substantive visa that was refused, and the holder applies, or purports to apply, for merits review of that refusal, the visa holder is permitted to remain in Australia until:

 

*                28 days after notification by the review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

 

*                if the holder has the right to apply to another review authority for merits review of the decision of the review authority and so applies, or purports to apply - 28 days after notification by the other review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

The new subparagraphs substantially replicate the previous subparagraphs but also explicitly provide for a bridging visa to cease to be in effect where the holder purports to apply for merits review.  Under the subparagraphs, where a bridging visa holder applies for review, but the review application was found by the relevant review authority to not be made in accordance with the law governing the making of merits review applications to that review authority, the bridging visa will cease 28 days after the notification by the review authority that the application was not made in accordance with the law governing the making of applications to that review authority.

 

Similarly, if the holder purports to seeks review of the decision of the first review authority with a second review authority, the bridging visa will cease 28 days after notification by the second review authority that the review application was not lawfully made.

 

The effect of these amendments is that, where the holder of a bridging visa has made an application for merits review of the decision to refuse his/her substantive visa application but the application was found by the review authority not to comply with the law governing the making of applications to that review authority, the bridging visa ceases to be in effect 28 days after the review authority notified the visa holder that the application was not made in accordance with the law governing the making of review applications to that review authority.

 

The purpose of the amendments is to clarify and reinforce the Department's long standing position about when a bridging visa ceases to be in effect where the applicant seeks review of a decision to refuse an application for a substantive visa. The Department's position is that the current provisions providing for such a bridging visa to cease apply regardless of whether the review application was made in accordance with the law governing the making of applications to that review authority. Accordingly, the amendments provide certainty about when a bridging visa ceases by making it clear that where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority.

 

The amendments continue to provide that a bridging visa granted on this basis allows the visa holder to remain in Australia until 28 days after notification of the decision by the relevant review authority.

 

 

 

 

Items [5], [7], [9], [11] and [13] - Schedule 2, clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB

 

These items amend clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB in Part 050 of Schedule 2 to the Principal Regulations to insert ', or has purported to apply,' after 'has applied'.

 

Previously, clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB provide for the cessation of a BVE 050 held by a non-citizen who has applied for merits review of the following respective matters (collectively 'non-refusal event'):

 

*                for clause 050.511D, a decision under the Australian Citizenship Act 1948 or the Australian Citizenship Act 2007;

*                for clauses 050.513, 050.514 and 050.514AB, the cancellation of visas; and

*                for clause 050.513B, a decision under section 137L of the Act not to revoke the cancellation of a visa.

 

The amended clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB substantially replicate the previous clauses but also explicitly provides for a BVE 050 held by a non-citizen who has applied, or purported to apply, for merits review of a non-refusal event to cease to be in effect.

 

The amendments will have the effect of explicitly providing that those provisions about when a BVE 050 ceases to be in effect also apply in circumstances where the holder of a BVE 050 purported to apply for merits review of a non-refusal event.

 

The purpose of the amendments is to clarify and reinforce the Department's long standing position that the cessation events applicable to a bridging visa held on the basis of an application for merits review apply where the visa holder purports to apply for merits review.

 

Items [6], [8], [10], [12] and [14] - Schedule 2, subparagraph 050.511D(b)(i) paragraphs 050.513(a), 050.513B(a), 050.514(a) and 050.514AB(a)

 

These items substitute subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a), 050.514(a) and 050.514AB(a) in Part 050 in Schedule 2 to the Principal Regulations.

 

Previously, a BVE 050 granted to a non-citizen who has applied for merits review of a non-refusal event permits the holder to remain in Australia until 28 days after:

 

*                the day the non-citizen is notified of the merits review decision, pursuant to subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a) and 050.514(a); or

*                the person whose visa was cancelled under section 137J of the Act is notified of the review decision, pursuant to subparagraph 050.514AB(a).

 

The new subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a) and 050.514(a) provide that the BVE 050 permits the visa holder to remain in Australia until:

 

*                28 days after notification by the review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

The new subparagraph 050.514AB(a) provides that the BVE 050 permits the visa holder to remain in Australia until:

 

*                28 days after the person whose visa was cancelled under section 137J of the Act is notified by the review authority:

 

o   of its decision of on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

The amendments substantially replicate the previous provisions but also explicitly provide for a bridging visa held on the basis of a purported application for merits review of a non-refusal event to cease to be in effect.  Under the subparagraphs, where a bridging visa holder applies for merits review of a non-refusal event, but the review application was found by the relevant authority to not be made in accordance with the law governing the making of merits review applications to that authority, the bridging visa ceases 28 days after the review authority notifies the visa holder that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

These amendments complement the amendments in items [5], [7], [9], [11] and [13] and their purpose is to clarify and reinforce the Department's long standing position that, where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority.  The amendment provides certainty about when bridging visas cease to be in effect.

 

Items [15] and [16] - Schedule 2, paragraphs 051.511(b) and 051.513(1)(b)

 

These items substitute paragraphs 051.511(b) and 051.513(1)(b) of Part 051 of Schedule 2 to the Principal Regulations. Among other things, Part 051 provides for when a Subclass 051 (Bridging (Protection Visa Applicant)) visa (BVE 051) ceases to be in effect.

 

One basis on which a non-citizen may be granted a BVE 051 is that the non-citizen has made an application for a Protection visa that has not been finally determined.

 

Previous paragraph 051.511(b) provided that a BVE 051 granted on the basis of an applicant having made an application for a Protection visa permits the visa holder to remain in Australia until:

 

*                if the application is refused and the holder applies for merits review of that decision - 28 days after notification of the decision of the final review authority appealed to.

 

The new paragraph 051.511(b) provides that if the holder of a BVE 051 applies, or purports to apply, for merits review of a decision to refuse the Protection visa application, the BVE 051 permits the holder to remain in Australia until:

 

*                28 days after notification by the review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

 

*                if the holder has the right to apply to another review authority or merits review of that decision of the review authority and so applies, or purports to apply - 28 days after notification by the other review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

Another basis on which a non-citizen may be granted a BVE 051 is that the non-citizen was taken to have been granted a BVE 051 by operation of section 75 of the Act and that was not applied for on the basis of the non-citizen seeking judicial review.  Section 75 of the Act provides that a bridging visa is taken to have been granted to an eligible non-citizen in immigration detention who has made an application for a bridging visa of a prescribed class and the Minister had not decided after a prescribed period to grant or refuse to grant that bridging visa.

 

The term 'eligible non-citizen' is defined in subsection 72(1) of the Act and defines certain cohorts of non-citizens who may apply for, and be granted, a BVE 050 or BVE 051.

 

Previous paragraph 051.513(1)(b) provides that, for a BVE 051 granted on the grounds outlined in the paragraph above, the BVE 051 permits the holder to remain in Australia until:

 

*                if the Protection visa application is refused and the holder applies for merits review of that decision - 28 days after notification of the decision of the final review authority appealed to.

 

The new paragraph 051.513(1)(b) provides that if the holder of a BVE 051 applies, or purports to apply, for merits review of a decision to refuse the Protection visa application, the BVE 051 permits the holder to remain in Australia until:

 

*                28 days after notification by the review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

 

*                if the holder has the right to apply to another review authority or merits review of that decision of the review authority and so applies, or purports to apply - 28 days after notification by the other review authority:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

The amendments substantially replicate the substituted paragraphs but also explicitly provide for a BVE 051 held on the basis of a purported application for merits review of a decision to refuse the Protection visa application to cease to be in effect.  Under the subparagraphs, where the holder of a BVE 051 applies for review of the refusal decision, but the review application was found by the relevant authority to not be made in accordance with the law governing the making of merits review applications to that authority, the BVE 051 ceases 28 days after the review authority notifies the visa holder that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

In addition, the new paragraphs 051.511(b) and 051.513(1)(b) provide for a
BVE 051 to cease in circumstances where the visa holder can apply to a second review authority for review of the first review authority's decision, and so applies or purports to apply, for review of the first review authority's decision.  A bridging visa held in these circumstances ceases 28 days after notification by the second review authority of its decision, or that the review application was not made in accordance with the law governing the making of applications to that review authority.

 

The purpose of the amendments is to clarify and reinforce the Department's long standing position that where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority.  The amendment provides certainty about when a BVE 051 ceases to be in effect.






Schedule 2 - Amendments relating to Visa Application Charges

 

Item [1] to [7] - Schedule 1, subparagraphs 1124B(2)(a)(vii) and1129(2)(a)(ii); paragraph 1215(2)(a); subparagraph 1223A(2)(a)(iii), paragraph 1224A(2)(a); subitem 1225(2); subparagraph 1229(2)(a)(i)

 

Items [1] and [2] amend subparagraphs 1124B(2)(a)(vii) and 1129(2)(a)(ii) of Part 1 of Schedule 1 to the Principal Regulations to adjust the Visa Application Charge (VAC) for two classes of Permanent visas by substituting the amended visa application charges.

 

Items [3] to [7] amend paragraph 1215(2)(a); subparagraph 1223A(2)(a)(iii), paragraph 1224A(2)(a), subitem 1225(2) and subparagraph 1229(2)(a)(i) of Part 2 of Schedule 1 to the Principal Regulations to adjust the VAC for five subclasses of Temporary visa by substituting the amended visa application charges.

 

The provisions to be amended and the amendments are set out in this table:

 

Provision

Current VAC

Amended VAC

In Part 1 of Schedule 1 of the Regulations

 

 

subparagraph 1124B(2)(a)(vii)

$3,060

$3,975

subparagraph 1129(2)(a)(ii)

$2,060

$2,680

In Part 2 of Schedule 1 of the Regulations

 

 

paragraph 1215(2)(a)

$2,060

$2,680

subparagraph 1223A(2)(a)(iii)

$350

$455

paragraph 1224A(2)(a)

$280

$365

subitem 1225(2)

$280

$365

subparagraph 1229(2)(a)(i)

$315

$1,250

 

On 22 October 2012 the Government released its Mid-Year Economic and Fiscal Outlook (MYEFO) for the 2012-2013 financial year.  In the MYEFO, the Government announced an increase in the VAC for skilled graduate visas by 300% and for partners, working holiday makers and temporary overseas worker visas by 30%.  This measure is estimated to increase revenue by $520.5 million over four years.

 

The purpose of this amendment is to give effect to the Government's announcement.  All increases are rounded to a multiple of $5.00 according to the following methodology:

 

 

The amount of the increase in these items does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

 

Schedule 3 - Amendments relating to biometric assessment

 

Item [1] - Paragraph 2.04(3)(b)

 

This item substitutes paragraph 2.04(3)(b) in Division 2.1 of Part 2 to the Principal Regulations.

 

Background Legislation

 

Regulation 2.04 of the Principal Regulations prescribes circumstances in which a visa may be granted pursuant to section 40 of the Act. 

 

Subsection 40(1) provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

 

Subsection 40(3) relevantly provides that, without limiting subsection 40(1), if prescribed circumstances exist and the Minister has not waived the operation of subsection 40(3), the circumstances under which a visa must be granted may be or may include that the visa applicant has complied with any requirement of an officer to provide one or more personal identifiers in relation to the visa application.

 

Subsection 40(5), in effect, provides that the requirement to provide a personal identifier by way of an identification test carried out by an authorised officer does not apply in prescribed circumstances. 

 

It should be noted that the term 'prescribed circumstance' relevantly refers here to those circumstances prescribed under paragraph 40(3)(a) or subsection 40(5) of the Act.  The term 'circumstance', used in subsection 40(1) of the Act, relevantly refers to a factual situation that must exist in order for a visa to be granted.  These circumstances are provided in those provisions in Schedule 2 to the Principal Regulations that are relevant to each visa subclass. 

 

Previously, subregulation 2.04(3), in effect, provided that, for paragraph 40(3)(a) and subsection 40(5) of the Act, a prescribed circumstance is that, where a visa applicant is outside of Australia at the time they apply for the visa, the visa applicant's personal identifiers mentioned in subregulation 2.04(6) are provided at a place specified by the Minister in an instrument in writing for this paragraph.

 

The personal identifiers mentioned in subregulation 2.04(6) are:

 

 

Proposed Amendment

 

Paragraph 2.04(3)(b) now provides that, for paragraph 40(3)(a) and subsection 40(5) of the Act, a prescribed circumstance is that, where a visa applicant is outside Australia at the time they apply for a visa:

 

 

 

 

 

 

The amendment expands the scope of what is a prescribed circumstance for the purposes of paragraph 40(3)(a) and subsection 40(5) of the Act.  Previously, the circumstance prescribed under those provisions was just that a visa applicant who is outside Australia at the time they apply for a visa has provided a personal identifier at a place specified by the Minister in an instrument in writing.  The amendment provides that those visa applicants may also provide those personal identifiers to an officer located outside Australia or to a person in a class of persons specified by the Minister in an instrument in writing. 

 

The word 'officer' is defined in subsection 5(1) of the Act to relevantly include an officer of the Department (currently the Department of Immigration and Citizenship) and any person included in a class of persons authorised by the Minister in writing to be an officer for purposes of the Act.  Currently, the Minister has authorised, among others, certain employees engaged to work at Australian diplomatic posts to be officers under the Act.

 

The amendment also includes the provision of personal identifiers to a person in a class of persons specified by the Minister in writing for proposed sub-subparagraph 2.04(3)(b)(i)(B).  This alternative is included in case the Australian Government enters into arrangements with other organisations or bodies to collect personal identifiers from visa applicants outside Australia for the purpose of applying for an Australian visa.

 

Collecting Personal Identifiers

 

Under paragraph 40(3)(a) of the Act, the existence of a prescribed circumstance relevantly means that the circumstances for the grant of a visa may be, or may include that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for a visa.  Paragraph 2.04(1)(b) relevantly imposes compliance with any such requirement as a circumstance for the grant of a visa to a visa applicant who is outside Australia at the time they applied for a visa.

 

The effect of these provisions is that, where the visa applicant outside Australia is required to provide a personal identifier in those prescribed circumstances (i.e. currently only at a place specified by the Minister) and, where the prescribed circumstances exist, they will be refused the grant of a visa if they do not provide the required personal identifiers.

 

There are a range of situations where visa applicants cannot reasonably be expected to attend a place specified by the Minister in writing.  This would include situations such as people in refugee camps applying for humanitarian visas to live in Australia.  Previously, officers attending refugee camps could only request, rather than require, the provision of a visa applicant's personal identifiers.  If a visa applicant in that situation did not provide the requested personal identifiers, it would not prevent the grant of their visa.

 

The benefits of collecting personal identifiers include better protecting visa applicants from identity fraud, making travel to Australia safer, strengthening Australia's border security, and improving national security. The amendment would supplement existing provisions by enabling the provision of personal identifiers, when required by an officer, to an officer or a person in a class of persons specified by the Minister in an instrument in writing. 

 

Under subsection 40(5), the existence of a prescribed circumstance means that the requirement in subsection 40(4) of the Act to collect personal identifiers by means of an identification test carried out by an authorised officer does not apply.  Identification tests carried out by authorised officers are not used in the overseas context because there is a need to be flexible in the way personal identifiers are collected. For example, in the majority of cases personal identifiers are collected by staff at visa application centres operated by service delivery partners, and such staff cannot be authorised to carry out identification tests because they are not 'officers' for the purposes of the Act.

 

Item [2] - Subparagraph 2.08AC(4)(a)(ii)

 

This item substitutes subparagraph 2.08AC(4)(a)(ii) in Division 2.2 of Part 2 to the Principal Regulations. 

 

Background Legislation

 

Regulation 2.08AC of the Principal Regulations prescribes the circumstances in which a visa may be granted pursuant to section 46 of the Act.  Previously, subsection 2.08AC(4) provided that, for subsection 46(2C) of the Act:

 

                (a)    a circumstance is that:

 

                          (i)    the application:

 

                                   (A)     is not an application for a bridging visa that is made by an applicant who is outside Australia at the time of the application; and

 

                                   (B)     is not an application for a Witness Protection (Trafficking) (Permanent) (Class DH) visa that is made by an applicant who is outside Australia at the time of application; and

 

                         (ii)    the personal identifier mentioned in paragraph (b) is to be provided at a place specified by the Minister in an instrument in writing for this subparagraph; and

 

               (b)    a personal identifier is:

 

                          (i)    fingerprints of a person (including those taken using paper and ink or digital livescanning technologies); or

 

(ii)   a photograph or other image of the applicant's face and shoulders.

 

Proposed Amendment

 

Subparagraph 2.08AC(4)(a)(ii) now provides that, for subsection 46(2C) of the Act, a circumstance includes:

 

 

 

 

 

 

The amendment expands the scope of what is a prescribed circumstance for the purpose of subsection 46(2C) of the Act.  Previously, the circumstance prescribed under that subsection is just that a person who is outside Australia at the time they apply for a visa and who has not applied for certain visas has provided a personal identifier at a place specified by the Minister in an instrument in writing.  The amendment provides that those visa applicants may also provide those personal identifiers to an officer located outside Australia or to a person in a class of persons specified by the Minister in an instrument in writing.

 

The word 'officer' is defined in subsection 5(1) of the Act to relevantly include an officer of the Department (currently the Department of Immigration and Citizenship) and any person included in a class of persons authorised by the Minister in writing to be an officer for purposes of the Act.  Currently, the Minister has authorised, among others, certain employees engaged to work at Australian diplomatic posts to be officers under the Act.

 

The amendment would also include the provision of personal identifiers to a person in a class of persons specified by the Minister in writing for proposed sub-subparagraph 2.08AC(4)(a)(ii)(B).  This alternative is included in case the Australian Government enters into arrangements with other organisations or bodies to collect personal identifiers from visa applicants outside Australia for the purpose of applying for an Australian visa.

 

Collecting Personal Identifiers

 

The effect of subsection 46(2A) of the Act is that, if a visa applicant is required to provide personal identifiers and they do not, their visa application will be invalid.  An invalid visa application cannot lead to the grant of a visa (subsections 47(3) and 65(1) of the Act). 

 

Subsections 46(2B) and 46(2C) operate together such that, where a visa applicant has been required under subsection 46(2A) to provide personal identifiers and where the circumstances prescribed under subsection 46(2C) exist, a visa applicant's personal identifiers are not required to be provided by means of an identification test carried out by an authorised officer in order for their visa application to be valid. Identification tests carried out by authorised officers are not used in the overseas context because there is a need to be flexible in the way personal identifiers are collected. For example, in the majority of cases, personal identifiers are collected by staff at visa application centres operated by service delivery partners, and such staff cannot be authorised to carry out identification tests because they are not 'officers' for the purposes of the Act.  

 

Previously, the circumstance prescribed under subsection 2.08AC(4) turned on the personal identifiers only being provided at a place specified by the Minister in writing. There are a range of situations where visa applicants cannot reasonably be expected to attend at a place specified by the Minister in writing.  This would include situations such as people in refugee camps applying for humanitarian visas to live in Australia.  Previously, officers attending refugee camps could only request, rather than require, the provision of a visa applicant's personal identifiers.  If a visa applicant in that situation did not provide the requested personal identifiers, their visa application would not be invalid.

 

The benefits of collecting personal identifiers include better protecting visa applicants from identity fraud, making travel to Australia safer, strengthening Australia's border security, and improving national security. The amendment would supplement existing provisions by enabling the provision of personal identifiers, when required by an officer, to an officer or a person in a class of persons specified by the Minister in an instrument in writing.

 

 

 

Schedule 4 - Amendment relating to transitional arrangements

 

Item [1] - Schedule 13, after Part 8

 

This item inserts a new Part 9 after Part 8 of Schedule 13 to the Principal Regulations to deal with transitional arrangements in respect of amendments made by this Regulation.

 

The heading of new Part 9 is 'Amendments made by Migration Amendment Regulation 2012 (No. 8)'.

 

Subitem 901(1) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation apply in relation to a bridging visa to which the following apply:

 

*                the visa is held on the basis of an application, or a purported application, for merits review; and

*                on 1 January 2013, the final review authority in relation to that merits review had not yet notified the holder of the bridging visa:

 

o   of its decision on the merits review; or

o   that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

 

Subitem 901(2) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation also apply in relation to a bridging visa that is held on the basis of an application, or a purported application, for merits review made on or after 1 January 2013.

 

Subitem 901(3) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation apply in relation to a bridging visa:

 

*            that is held on the basis of an application for a substantive visa:

 

o   made, but not finally determined, before 1 January 2013; or

o   made on or after 1 January 2013; and

 

*            to which subitems 901(1) and (2) are not applicable.

 

Subitem 901(4) provides that the amendments to the Principal Regulations made by Schedule 2 to the Regulation apply in relation to a matter for which an obligation to pay a charge is incurred on or after 1 January 2013. 

 

Subitem 901(5) provides that the amendments made by Schedule 3 apply to an application for a visa:

 

*         made, but not finally determined, before 1 January 2013; or

*         made on or after 1 January 2013.

 

The purpose of these amendments is to clarify to whom the amendments in this Regulation applies.


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