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MIGRATION LEGISLATION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 22 OF 2009)
EXPLANATORY STATEMENT
Australian Citizenship Act 2007
Migration Act 1958
Migration Legislation Amendment Regulations 2009 (No. 1)
Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters that are required or permitted under that Act, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides, in part, that the Governor-General may make regulations, not inconsistent with that Act, prescribing all matters which by that Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to that Act.
In addition, regulations may be made pursuant to the provisions of the Citizenship Act and the Migration Act listed in Attachment A.
The purpose of the Regulations is to amend the Australian Citizenship Regulations 2007 and the Migration Regulations 1994 to improve the operation of immigration and citizenship policy.
In particular, the Regulations include two Schedules that:
· Schedule 1: enables fees relating to Australian citizenship to be collected in certain foreign currencies; and
· Schedule 2: broadens the visa conditions that can be applied to certain Bridging Visa E (Subclass 050 Bridging (General)) visas.
Details of the Regulations are set out in Attachment B.
The Regulations in Schedule 1 commence on 15 March 2009 while the Regulations in Schedule 2 commence on 28 March 2009.
The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.
No consultation was necessary in relation to these amendments 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
Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters that are required or permitted under the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, paragraph 46(1)(d) of the Citizenship Act provides that an application under a provision of this Act must be accompanied by the fee (if any) prescribed by the regulations.
Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides in part that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration 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 Migration Act.
Subsection 5(1) of the Migration Act provides, amongst other things, that “prescribed” means prescribed by the regulations.
In addition to subsection 504(1) of the Migration Act, the following provisions may apply:
· Subsection 29(2) and 29(3) provide that the Regulations provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia.
· Subsection 31(3) provides that the Regulations may prescribe criteria for a visa of a specified class.
· Subsection 31(4) provides that the Regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
· Subsection 40(1) provides that the Regulations may provide that a visa of a specified class may only be granted in certain circumstances.
· Subsection 41(1) of the Act, which provides that regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
ATTACHMENT B
Details of the Migration Legislation Amendment Regulations 2009 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Legislation Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation provides that regulations 1 to 3 and Schedule 1 commence on 15 March 2009 while regulation 4 and Schedule 2 commence on 28 March 2009.
Regulation 3 – Amendment of Australian Citizenship Regulations 2007 – Schedule 1
Subregulation 3(1) provides that the Citizenship Regulations are amended as set out in Schedule 1.
Subregulation 3(2) provides that the amendments apply to an application made under Division 2, 3 or 4 of Part 2 of the Australian Citizenship Act 2007 (the Citizenship Act) on or after 15 March 2009.
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
Subregulation 4(1) provides that the Migration Regulations are amended as set out in Schedule 2.
Subregulation 4(2) provides that the amendments apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), on or after 28 March 2009; or made on or after 28 March 2009.
Schedule 1 – Amendments of Australian Citizenship Regulations 2007
Item [1] – Regulation 12
This item substitutes regulation 12 of the Citizenship Regulations with new regulation 12 and inserts new regulation 12A.
New regulation 12 is consequential to the insertion of new regulation 12A. New regulation 12 provides that if information or a document accompanying an application for Australian citizenship is not originally in English, the information or document must be accompanied by an official English translation. This is in identical terms to what is in current subregulation 12(1).
New regulation 12A provides for fees to accompany applications. This is currently dealt with under subregulation 12(2). The purpose of the insertion of new regulation 12A is to ensure that if applications relating to Australian citizenship are made in some foreign countries, the fees to accompany that application may be paid in a foreign currency that is payable in that foreign country. Currently, the Citizenship Act and the Citizenship Regulations do not permit the collection of Australian citizenship application fees in a foreign currency. This is because paragraph 46(1)(d) of the Citizenship Act provides that an application must be accompanied by the fee (if any) prescribed by the regulations. Current subregulation 12(2) provides that for the purpose of paragraph 46(1)(d) of the Citizenship Act, an application of the kind mentioned in an item in Schedule 3 must be accompanied by the fee mentioned in the item. The fees mentioned in Schedule 3 are in Australian dollars. It is not possible to read the reference to Australian dollars as extending to the equivalent in foreign currency. It is inconvenient for applicants who lodge an application in a foreign country, to accompany that application with a fee in Australian dollars.
Subregulation 12A(1) provides that for paragraph 46(1)(d) of the Citizenship Act, an application must be accompanied by a fee mentioned in the relevant item in Schedule 3 and is to be paid in accordance with regulation 12A. The remainder of regulation 12A sets out the countries in which application fees may be paid and the currencies that may be paid in those countries.
Subregulation 12A(2) provides that application fees may be paid in Australia, or a foreign country if that country is mentioned in the places and currency instrument. New subregulation 12A(7) provides a definition of “places and currency instrument”. This is the instrument made under subregulation 5.36(1) of the Migration Regulations.
Subregulation 12A(3) provides that payment must be made in the relevant currency that corresponds to the country set out in the “places and currency instrument”. For example, if the application fee is made in Argentina, then the corresponding currency is the Argentine Peso.
Subregulation 12A(4) sets out by reference to the conversion instrument, the amount that is to be paid where it is possible to pay the application fee in a foreign currency. Subregulation 12A(7) provides a definition of “conversion instrument”. It is the instrument made under subregulation 5.36(1A) of the Migration Regulations. It provides amounts in foreign currencies which correspond to amounts payable in Australian dollars. If the amount of the application fee is mentioned in the conversion instrument, then payment can be made in the corresponding amount in the foreign currency.
Subregulation 12A(5) sets out a formula for the amount that is to be paid in a foreign currency for a citizenship fee where the amount in Australian dollars is not mentioned in the conversion instrument. Broadly, the formula, which is the same as the formula used in subregulation 5.36(2) of the Migration Regulations, is the amount of the fee in Australian dollars, multiplied by the highest exchange rate that is lawfully obtainable on a commercial basis for purchase in the foreign currency, multiplied by 1.05. The period for calculating the highest exchange rate obtainable on a commercial basis starts on either the day on which this subregulation commences (15 March 2009), or if the rate increases or decreases by at least 5% subsequent to the commencement date, the day on which that increase/decrease occurs. The period for calculating the highest exchange rate ends at the end of the day before the next day on which the highest exchange rate commercially obtainable increases or decreases again by at least 5%.
Subregulation 12A(6) provides that if the amount worked out by the formula cannot be paid wholly in banknotes of that country, then the amount is rounded up so that it can be paid wholly in banknotes of that country.
Subregulation 12A(7) provides definitions of “conversion instrument” and “places and currencies instrument” for the purpose of regulation 12A. The conversion instrument is the current instrument made under subregulation 5.36(1A) of the Migration Regulations which sets out the payment of visa application charges and fees in foreign currencies. The places and currencies instrument is the current instrument made under subregulation 5.36(1) of the Migration Regulations which sets out the places and currencies for paying fees. Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under regulation 5.36 of the Migration Regulations as in force from time to time. Rather, those instruments will be incorporated by reference at time of commencement of the Regulations.
Item [2] – After subregulation 13(5)
This item inserts new subregulation 13(6) in the Citizenship Regulations.
New subregulation 13(6) provides for the currency in which a refund of fees may be made. This amendment is consequential to the amendments made in item [1] of this Schedule. Item [1] creates the ability to accept fees relating to citizenship in certain foreign currencies. If an applicant pays a fee in a foreign currency and that applicant is entitled to a refund, then new subregulation 13(6) allows for that refund to be paid in the foreign currency.
Item [3] – Schedule 3, heading
This item substitutes the heading of Schedule 3 to the Citizenship Regulations with a new heading.
The new heading makes reference to regulation 12A, as inserted by item [1] of this Schedule. The current title refers to subregulation 12(2). This amendment is consequential to the amendments made by item [1] which removes “fees to accompany applications” from regulation 12 and places it in new regulation 12A.
Item [4] – Schedule 3, item 5, column 2
This item omits each reference to “3 months” in column 2 of item 5 of Schedule 3 to the Citizenship Regulations and inserts “90 days”.
This amendment provides clarity as to the length of time that someone must serve in the permanent forces of the Commonwealth or National Service in order to attract a nil application fee for citizenship. The current reference to 3 months is unclear given that the number of days in calendar months may vary.
Schedule 2 – Amendments of Migration Regulations 1994 relating to bridging visas
Item [1] – Schedule 2, clause 050.611A
This item omits clause 050.611A from Schedule 2 to the Migration Regulations.
Clause 050.611A specifies the conditions that may be imposed on a visa granted to an unlawful non-citizen who is not in immigration detention, and who has held a Bridging E (Class WE) visa since they last held a substantive visa, but does not hold a Bridging E (Class WE) visa immediately before the time of grant, and who was interviewed by an authorised officer before the visa was granted.
Two effects result from this amendment to omit clause 050.611A from the Migration Regulations. Firstly, the visa conditions that may currently be imposed under clause 050.611A will no longer be able to be imposed. Secondly, the visa conditions specified under clause 050.614 will be able to be imposed on those visas to which clause 050.611A would previously have applied. These changes will allow for the imposition of additional visa conditions.
The purpose of this amendment is to ensure that a person granted a subclass 050 – Bridging (General) visa (“BVE”) on the basis that the Minister is satisfied that the applicant is making, or is subject to, acceptable arrangements to depart Australia, where the person:
can have imposed on their BVE any one or more of the broader set of conditions referred to in clause 050.614 including conditions 8510, 8511 and 8512.
Condition 8510, if imposed, obliges the visa holder within a time specified by the Minister to either show an officer a passport that is in force, or make an arrangement satisfactory to the Minister to obtain a passport. Condition 8511, if imposed, obliges the visa holder, within a time specified by the Minister to show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on their arrival. Condition 8512, if imposed, obliges the visa holder to leave Australia by a date specified by the Minister.
Item [2] – Schedule 2, clause 050.614
This item inserts ‘8402,’ after ‘8401,’ in clause 050.614 of Schedule 2 to the Migration Regulations.
This amendment ensures that condition 8402, which may have been imposed on those people affected by clause 050.611A, may still be imposed on those people who will instead now be affected by clause 050.614.
Condition 8402, if imposed, obliges the visa holder to report within 5 working days of grant, to an office of immigration; and to that office on the first working day of every week after that initial reporting.