Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1991 NO. 18

Statutory Rules 1991 No. 18

Subject - Migration Act 1958

Migration Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition sections 23 and 33 of the Act enable him to make regulations providing for different classes of visas and entry permits.

The purpose of the Regulations is to amend the Migration Regulations to:

•       repeal the existing visa and entry permit provisions for students and replace then with three new visas and entry permits - occupational trainee, student (category A) and student (category B). These amendments give effect to Government policy of streamlining student entry arrangements;

•       ensure that visitors, working holiday makers, students and temporary residents are able to be granted a medical treatment entry permit; and

•       facilitate change of status on occupational grounds for PRC students in Australia on 20 June 1989 (all Chinese nationals in Australia on 20 June 1989 are covered by special concessions announced by the Government on 27 June 1990);

•       make a number of technical and stylistic amendments.

With the exception of regulation 34.1, which has been made retrospective to 10 December 1990, these amendments have been made retrospective to 1 February 1991. This retrospectivity is necessary: to avoid a number of individuals being severely disadvantaged. Further, as the amendments to the regulations have been drawn up to preserve all entitlements available to students under the Regulations before 1 February 1991, no person will be disadvantaged ie. the changes in the Regulations essentially reflect different administrative and procedural arrangements. Changes relating to persons other than students are all beneficial to the individual affected.

The retrospectivity is therefore not in conflict with provisions of the Acts Interpretation Act 1901.

The need for retrospectivity for the students flows from the fact it was decided late in December 1990 that the new student arrangements be implemented on 1 February 1991, as it is during February that the great bulk of overseas students travel to Australia to complete their enrolments. Because of the complexity of the provisions it was not possible for the drafting of the Regulations to be completed before 1 February 1991.

Details of the Regulations are set out in the attachment.

Authority:       Sections 23, 33 and 181 of the Migration Act 1958

Cabinet Minute No 13884 of 26 June 1990

Cabinet Minute No 14013 of 24 July 1990

Issued by the Minister for Immigration, Local Government and Ethnic Affairs

ATTACHMENT

MIGRATION REGULATIONS (AMENDMENT)

Regulation 1 - Commencement

Regulation 1.1 provides for these amendments (other than regulation 34.1) to be retrospective to 1 February 1991. Retrospectivity to this date was necessary so that the new student and occupational trainee visas could commence in time for the new student year. No disadvantage to individuals will occur.

Regulation 1.2 provides for the amendment in regulation 35.1 to be retrospective to 10 December 1990 in order to prevent disadvantage to individuals. (See comment on regulation 3.5).

Regulation 2 - Amendment

This regulation provides for the Migration Regulations to be amended.

Regulation 3 - Regulation 2 (Interpretation)

This regulation makes changes to some of the existing definitions in the Migration Regulations, and adds some new definitions to cover terms introduced into the Migration Regulations as a result of the new student amendments.

Regulation 4 - Regulation 7 (Interpretation - member of a family unit)

This regulation amends regulation 7 of the Migration Regulations so that the definition of "family unit member" given in that regulation in relation to holders of student visas and entry permits (spouse, dependent children under 18, or fiance(e)), applies also in relation to holders of the new occupational trainee visas and entry permits.

Regulation 5 - Regulation 11 (Application for visa outside Australia)

This regulation makes a technical amendment to regulation 11(2)(d) of the Migration Regulations, so that it continues to provide that students sponsored by the Australian International Development Assistance Bureau (AIDAB) or under the Equity Merit Scholarship Scheme (EMSS) may lodge student visa applications in the Republic of South Africa.

Regulation 6 - New Regulation 12B

This regulation inserts a new regulation 12B into the Migration Regulations - Certain applications for student visas to have effect as applications for student visas or occupational trainee visas, as appropriate. This provision enables an application for a student visa which was lodged before 1 February 1991 but not decided by that date to have effect as an application f or a student (category A), student (category B) or occupational trainee, visa - whichever is appropriate.

Regulation 7 - Regulation 13 (Grant of visa)

Regulation 13 (2) (a) of the Migration Regulations provides that certain entry visas (including student entry visas) operating as entry permits may not operate as permanent entry permits. This regulation amends Regulation 13 to cover the new student visas and the new occupational trainee visas.

Regulation 8 - Regulation 16 (Effect and operation of visas)

Regulation 16(8) of the Migration Regulations sets out which conditions for visas are terminating ones. This regulation amends regulation 16(8) to ensure that the conditions set out in new regulations 98C, 98D and 98E applying to student visas as terminating conditions.

Regulation 9 - Regulation 18 (Mandatory conditions for grant of visa)

This regulation amends regulation 18 of the Migration Regulations to enable different conditions to apply to persons holding the same visa. It will enable the imposition of different mandatory conditions on persons who hold a visa as a student and persons who hold the same visa as a member of the family unit of the student.

Regulation 10 - New Regulation 22C

This regulation inserts a new regulation 22C into the Migration Regulations - Certain applications for student entry permits to have effect as applications for student entry permits or occupational trainee entry permits, as appropriate. This provision enables an application for a student entry permit which was lodged before 1 February 1991 but not decided by that date to have effect as an application for a student (category A), student (category B) or an occupational trainee, entry permit - whichever is appropriate.

Regulation 11 Regulation 27 (Effect and operation of entry Permits)

Regulation 27(3) of the Migration Regulations sets out which conditions for entry permits are terminating ones. This regulation amends regulation 27(3) so that the conditions set out in new regulations 98C and 98E applying to student (category A) and student (category B) visas have effect as terminating conditions.

Regulation 12 - Regulation 29 (Mandatory conditions for grant of entry permit)

This regulation amends regulation 29 of the Migration Regulations to enable different conditions to apply to persons holding the same entry permit. It will enable the imposition of different mandatory conditions on persons who hold an entry permit as a student and persons who hold the same entry permit as a member of the family unit of the student.

Regulation 13 - Regulation 34A (Satisfaction of prescribed criteria)

This regulation adds a new sub-regulation to regulation 34A of the Migration regulations to specify that a person who applies for an entry permit under regulation 120, 121, 122, 125 or 125A (visitors, working holiday makers, students, temporary residents and domestic workers seeking further entry permits) and regulations 123, 123A or 125B as in force before 1 February 1991 must satisfy the prescribed criteria at the time of decision rather than at the time of application.

Regulation 14 - Regulation 39 (Prescribed class of persons subsection 47(7) of the Act (definition of "prescribed non-citizen"))

Regulation 39 of the Migration Regulations prescribes the classes of noncitizens who are prescribed non-citizens for the purpose of subsection 47(7) of the Migration Act. This regulation substitutes a new regulation 39 of the Migration Regulations to bring it into line with the new student and occupational trainee, visa and entry permit arrangements. There is no change in the class of holders of student entry permits who are prescribed non-citizens (ie. all students, except those who are following full award courses and are not assisted or exchange students). Holders of the new occupational trainee visa/entry permit are also prescribed non-citizens under regulation 39.

This regulation also will now remove PRC citizens who were in Australia on 20 June 1989 from the classes of prescribed noncitizens. This will facilitate applications by them for resident status on occupational grounds (see also regulations 36 and 37).

Regulation 15 - Regulation 40 (Prescribed chance in circumstances -paragraphs 36(1)(a) and 37(2)(a) of the Act)

Sections 36 and 37 of the Migration Act prevent, under certain circumstances, a person applying for an entry permit unless there has been a prescribed change in the applicant's circumstances. This amendment adds a prescribed change of circumstances to those in regulation 40 - a PRC citizen who was in Australia on 20 June 1989 and who meets requirements to become a permanent resident on occupational grounds. Together with the amendment in regulation 14, this amendment enables a PRC citizen who has previously applied for an entry permit and has been rejected as a prescribed non-citizen, to lodge a second application.

Regulation 16 - Regulation 42 (Classes of entry Permits)

Regulation 16.1 corrects a typographical error.

Regulation 16.2 omits regulation 42(1C)(d) of the Migration Regulations. This paragraph was a transitional provision relating to students following the introduction of the Migration Regulations on 18 December 1989 and is no longer required.

Regulation 16.3 amends regulation 42(2) of the Migration Regulations as a consequence of the introduction of the new student and occupational trainee entry permits.

Regulation 16.4 adds a new regulation 42(7) to the Migration Regulations. This is a transitional provision consequential upon the introduction of the new student and occupational trainee entry permits and will enable people with pre-1 February 1991 student visas to be granted post 1 February 1991 student and occupational trainee entry permits on entering Australia.

Regulation 17 - Regulation 58 (Dependant (subsequent entry) visa)

This regulation omits regulation 58 - Dependant (subsequent entry) visa from the Migration Regulations as these provisions will now be included in regulation 108 - Grant of visa or entry permit to certain dependants (see regulation 27 of these Regulations).

Regulations 18-24 - Regulations 82-87A of the Migration Regulations

These regulations omit regulations 82, 83, 84, 85, 86, 87 and 87A of the Migration Regulations as they all set out prescribed criteria for various student visas which will be replaced by the new student and occupational trainee visas.

Regulation 25 - New Regulation 87B

This regulation inserts a new regulation 87B into the Migration Regulations - Occupational trainee visa. This regulation provides criteria to be met by a person wishing to undertake occupational training in Australia as an occupational trainee.

Regulation 26 - Part 3 (Prescribed criteria for classes of visas and entry permits)

This regulation inserts five new regulations into the Migration Regulations as follows:

Regulation 98B (Student (category A) visa)

This regulation creates a new regulation 98B of the Migration Regulations - Student (category A) visa. This visa sets out the prescribed criteria to be met by persons wishing to study a course that is approved by the Minister for Employment, Education and Training as a Category A course. Broadly speaking, category A students will be primary and secondary students, students studying post-secondary courses leading to a formal award (degree or diploma) and certain other sponsored or subsidised students.

This regulation also covers the family unit members of students.

Regulation 98C (Conditions - Student (category A) visa)

This regulation creates a new regulation 98C of the Migration Regulations which sets out the conditions applying to students and members of their family units who are granted student (category A) visas.

Regulation 98D (Student (category B) visa)

This regulation creates a new regulation 98D of the Migration Regulations - Student (category B) visa). This visa sets out the prescribed criteria to be met by persons wishing to study a course that is approved by the Minister for Employment, Education and Training as a category B course.

Broadly speaking category B courses are courses other than category A courses and are shorter courses not leading to any formal award. This regulation covers both the student and the family unit members. However not all category B students will be permitted to be accompanied or joined by family unit members.

A distinction has been drawn between category B applicants from "high risk" countries (countries, students from which have a high overstay rate) and applicants from "low risk" countries. "Low risk" countries will be gazetted under this regulation. More stringent conditions will apply to students from "high risk" countries.

Regulation 98E (Conditions - Student (category B) visa)

This regulation creates a new regulation 98E of the Migration Regulations which sets out the conditions applying to students and members of their family units who are granted student (category B) visas. The conditions of this visa will be less generous (particularly in relation to work rights) than those for the student (category A) visa.

Regulation 98F (English language test)

Under new regulation 98D(2)(b), the Minister, when deciding whether to grant a student (category B) visa, may have regard to the applicant's comprehension of English for the purposes of his or her course. This regulation creates a new regulation 98F of the Migration Regulations which enables the Minister to require an applicant to undertake an English language test.

Regulation 27 - Regulation 108 (Grant of visa or entry permit to certain dependants)

This regulation replaces regulation 108 of the Migration Regulations with a new regulation 108 which incorporates the old regulation 108 (Grant of visa or entry permit to accompanying dependant or dependant in Australia) and the old regulation 58 which enabled the grant of a visa or an entry permit to dependants seeking subsequent entry to Australia.

Regulation 28 - Regulation 115 (Grant of visa to enable re-entry to Australia)

Regulation 115 of the Migration Regulations enables grant of a reentry visa equivalent to the entry visa or entry permit hold by a person who wishes to leave and re-enter Australia. This amendment enables regulation 115 to apply to a person who held a student visa or entry permit granted prior to 1 February 1991.

Regulation 29 - Regulation 120 (Grant of temporary entry permit (other than working holiday entry permit) to holders of visitor visa, visitor entry permit or prescribed temporary entry permit)

Regulation 29 amends regulation 120 of the Migration Regulations to enable visitors to apply for occupational trainee entry permits. It also amends regulation 120 to that visitors applying for medical treatment entry permits have to satisfy less stringent health requirements.

Regulation 30 - Regulation 121 (Grant of temporary entry permit to holders of working holiday visa or entry permit or of prescribed temporary entry permit)

Regulation 30 amends regulation 121 of the Migration Regulations to enable working holiday makers to apply for occupational trainee entry permits. It also amends regulation 121 so that working holiday makers applying for medical treatment entry permits have to satisfy less stringent health requirements. Some minor technical amendments are also made.

Regulation 31 - Regulation 122 (Grant of temporary entry permit to holders of student visas or entry permits or of prescribed temporary entry Permits)

Regulation 31 amends regulation 122 of the Migration Regulations to enable certain students to apply for occupational trainee entry permits or further student entry permits. It also amends regulation 122 so that students applying for medical treatment entry permits have to satisfy less stringent health requirements. Some minor technical amendments are also made.

Regulation 32 - Regulation 123 (Grant of visitor or student entry permit to holders of certain student visas or entry permits or of prescribed temporary entry permits

This regulation omits regulation 123 of the Migration Regulations as a consequence of the introduction of the new student entry permits.

Regulation 33 - Regulation 123A (Holders of trainee (English language), or trainee (non-formal course), entry Permits or of certain Prescribed temporary entry permits - temporary provisions)

This regulation omits regulation 123A of the Migration Regulations as a consequence of the introduction of the new occupational trainee and student visas and entry permits.

Regulation 34 - Regulation 123B - (Continuing student whose temporary entry permit or visa operating as a temporary entry permit has expired)

This regulation amends regulation 123B of the Migration Regulations as a consequence of the new student and occupational trainee entry permits and is now a saving provision relating to provisions prior to 1 February 1991.

Regulation 35 - Regulation 125 (Prescribed criteria for grant of temporary entry permit to lawful temporary residents or holders of Prescribed temporary entry permits)

Regulation 35 amends regulation 125 of the Migration Regulations to enable temporary residents to apply for occupational trainee entry permits. It also amends regulation 125 so that temporary residents applying for medical treatment entry permits have to satisfy less stringent health requirements.

This regulation also clarifies that holders of border entry permits are able to apply for further entry permits. This provision is retrospective to 10 December 1990 to ensure that no person is disadvantaged.

Regulation 36 - Regulation 125B (Grant of a temporary-entry permit to certain students)

This regulation omits regulation 125B of the Migration Regulations as a consequence of the introduction of the new student entry permits.

Regulation 37 - Regulation 128 (Extended eligibility (economic) entry permit)

Regulations 37.1, 37.2, 37.3 and 37.5 make technical amendments to the Migration Regulations.

Regulation 37.4 amends regulation 128 of the Migration Regulations as a consequence of the introduction of the new student visas and entry permits.

Regulations 37.6 and 37.7 amend regulation 128 of the Migration Regulations to enable PRC students in Australia on 20 June 1989 to change status to permanent residence on occupational grounds if they meet requirements.

Regulation 38 - Regulation 139 (Skilled occupation entry Permits)

Regulations 38.1, 38.2, 38.3 and 38.5 make technical amendments to the Migration Regulations.

Regulation 38.4 amends regulation 128 of the Migration Regulations as a consequence of the introduction of the new student visas and entry permits.

Regulations 38.6 and 38.7 amend regulation 128 of the migration Regulations to enable PRC students in Australia on 20 June 1989 to change status to permanent residence on occupational grounds following their removal from the classes of prescribed noncitizens.

Regulation 39 - Regulation 185 (Fee on application for temporary entry permit granted only in Australia)

Regulation 185 of the Migration Regulations sets out the fee payable upon application for a temporary entry permit after entry to Australia. This regulation amends regulation 185 as a consequence of the introduction of the new student entry permits.

Regulation 40 - Regulation 191 (Fee on application for visa to enable re-entry to Australia)

This regulation amends regulation 191 of the Migration Regulations as a consequence of the introduction of the new student visas. In conjunction with the amendments to regulation 185, this regulation sets the fee payable for a visa to enable a student who wishes to re-enter Australia as a student at $100 except for certain assisted or sponsored students for whom no fee applies.

Regulations 41, 42 and 43 - Regulation 197 (Fees - trainee (English language) visa), Regulation 198 (Fees - Trainee (non-formal course) visa) and Regulation 199 (Fees - student (restricted) visa)

These regulations omit regulations 197, 198 and 199 of the Migration Regulations. Regulations 197, 198 and 199 set the fee payable upon application for a trainee (English language), a trainee (non-formal course) and a student (restricted) visa, respectively. These three visas have all been repealed as a consequence of the introduction of the new student and occupational trainee visas.

Regulation 44 New Regulations 202 and 203

This regulation inserts new regulations 202 and 203 into the Migration Regulations - Fees - student (category A) visa and Fees -student (category B) visa.

In new regulation 203, a distinction is drawn between applicants for student (category B) visas who are citizens of "gazetted countries" (in which case the fee is $100) and those who are citizens of countries which are not "gazetted countries" (in which case the fee is $230). Gazetted countries are countries from which there has been a low overstay rate and the fee is accordingly lower.

Regulation 45 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

Regulation 45.1 omits from Schedule 2 reference to the dependant (subsequent entry) visa and to various student visas, all of which have been omitted by these Regulations.

Regulation 45.2 amends Schedule 2 to include reference to the new student (category A), student (category B), and occupational trainee, visas.

Regulation 46 - Schedule 3 (Classes of entry permits)

Regulation 46 omits reference from Schedule 3 to the dependant (subsequent entry) entry permit and to various student entry permits, all of which have been omitted by these Regulations.

Regulation 46 also amends Schedule 3 to include reference to the new student (category A), student (category B), and occupational trainee, entry permits.

Regulation 47 - Schedule 5 (Mandatory conditions for grant of visas and entry permits)

Regulation 47 amends Schedule 5 to omit reference to visas and entry permits which have been omitted by these Regulations.

Regulation 47 also amends Schedule 5 to include reference to the new student (category A), student (category B) and occupational trainee, visas and entry permits and the mandatory conditions applicable to them.

Regulation 48 - Schedule 8 (Fees)

Regulation 48 amends Schedule 8 to omit reference to visas and entry permits which have been omitted by these Regulations. Regulation 48 also prescribes the fees for the new student (category A), student (category B) and occupational trainee visas.