Commonwealth Numbered Regulations - Explanatory Statements

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Statutory Rules 1991 No. 201

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.

Details of the Regulations are:

Regulation 1 - Commencement

Regulation 1 provides for the commencement of the Regulations. Regulation 6 has a commencement date of 1 June 1991 in order to remove a criterion which, after that date, applicants could not satisfy. Regulation 13 has a commencement date of 1 May 1991 in order to regularise applications made by individuals after that date. Regulations 14, 15 and 16 also have a commencement date of 1 May 1991 to enable certain students who have been made illegal entrants as a result of administrative delays to regularise their status. None of these amendments disadvantage any person and all provide significant advantage for some individuals.

Regulation 17 commences on 19 December 1989 in order to clarify the time at which certain criteria must be satisfied.

Regulation 2- Amendment

Regulation 2 provides for the Migration Regulations to be amended.

Regulation 3 - New Regulation 9A

This regulation provides for statistics relating to classes of individuals who have remained in Australia after the expiry of the period they were authorised to remain, to be taken into account in determining whether an individual who has the same characteristics as any one of these classes should be granted a visitor visa.

Regulation 4 - Regulation 17 (Conditions in connection with grant of visa)

This regulation provides that if a person who has the characteristics of a person likely to overstay the period he/she is authorised to remain in Australia, is granted a visit visa, then the visa can have certain conditions attached to it, namely, that the applicant can only stay for a period of time not exceeding 6 months, and can only be granted another entry permit without first leaving Australia if the grant of the entry permit to such a person is specifically allowed for in the Regulations.

The regulation also provides that a ground for rejecting an application for a visit visa is that the applicant has applied for permanent residence in Australia within 5 years immediately preceding the application for the visit visa.

Regulation 5 - Regulation 36 (Restrictions on re-entry)

Regulation 36 imposes certain exclusion periods which an individual who leaves Australia as an illegal entrant must undergo before being allowed to re-enter Australia. This regulation provides for the Minister to waive these periods if the applicant can satisfy the Minister that there are compassionate or compelling reasons for so doing.

Regulation 6 - Regulation 87B (Occupational trainee visa)

This regulation amends regulation 87B of the Migration Regulations to remove the requirement that applicants provide evidence of adequate health insurance arrangements in Australia. In practice, occupational trainees were required to be insured with Medibank Private's Overseas Student Health Cover. However from 1 June 1991 this was no longer available to occupational trainees. As there are at present no other suitable health insurances available, this requirement has been removed.

This amendment is retrospective to 1 June 1991 in order to avoid disadvantage to persons who have applied for an occupational trainee visa since that date and been unable to make satisfactory insurance arrangements.

Regulations 7, 8, 9, 10 and 11 - Regulation 88 (Business visitor visa): Regulation 89 (Close family visitor visa): Regulation 91 (Tourist visa): Regulation 92 (Tourist (special arrangements) visa): Regulation 93 (Visitor (other) visa)

These regulations provide for the risk factor of overstay specified in new regulation 9A (see regulation 3 above) to be incorporated as a criterion in each type of visit visa.

Regulation 12 - Regulation 99 (Division to cease to have effect)

This regulation extends the effect of Division 3 (which provides for the grant of certain refugee and humanitarian visas) until 30 September 1990.

Regulation 13 - Regulation 119K (Gulf conflict (temporary) entry permit)

This regulation amends regulation 119K of the Migration Regulations so that Gulf conflict (temporary) entry permits can be extended to 31 July 1991.

This regulation also amends regulation 119K to require that applicants for a Gulf conflict (temporary) entry permit be present in Australia on 30 April 1990.

This regulation amends regulation 119K so that countries gazetted under this regulation are countries that continue to be seriously affected by the consequences of the warfare arising out of the invasion of Kuwait by Iraq.

Regulation 4 - Regulation 122 (Grant of temporary entry permit to holders of certain student visas or entry permits, or of prescribed temporary entry permit)

This regulation makes a technical change to regulation 122 in the light of new regulation 122A (see regulation 15). It has been made retrospective to 1 May 1991 so as to operate from the commencement of 122A.

Regulation 15 - New regulation 122A

This regulation is a remake of regulation 122B (see regulation 16 below) for technical reasons. It also provides for students whose temporary entry permits have expired and who are not covered by any other provisions of the Regulations relating to illegal entrants to lodge applications under regulation 123B, provided they meet the provisions of regulation 123B (apart from paragraph (d)) and provided they lodged the material referred to in regulation 123B(c) before their entry permit or entry visa expired.

This amendment is retrospective to 1 May 1991 and will be beneficial to students who have already submitted the required material. Retrospectivity will not disadvantage anyone.

Regulation 16 - Regulation 123B (Continuing student whose temporary enter hermit or visa operating as a temporary entry permit has expired)

This regulation provides for the deletion of regulation 123B on technical grounds. (See regulation 15).

Regulation 17 - Regulation 127 (Extended eligibility (family) entry permit)

This regulation amends regulation 127 to make the amendments made by Statutory Rules 272 of 1990 retrospective to 19 December 1989. These amendments amended regulation 127 so that the circumstances referred to in the then criteria could have occurred before the applicant's arrival in Australia, and not since arrival in Australia as regulation 127 then required. This amendment is made because there is some doubt about the time the criteria must be satisfied. It is made retrospective in order to ensure that there is no disadvantage to individuals.

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

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

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