Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1991 NO. 25

EXPLANATORY STATEMENT

Statutory Rules 1991 No. 25

Subject - Migration Act 1958

Migration Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides that the GovernorGeneral 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:

       create a domestic protection (temporary) visa and entry permit to provide temporary residence in Australia for persons granted refugee status by the Minister, and to allow others who may not be entitled to refugee status but have strong humanitarian claims to be allowed to remain temporarily in Australia at the Minister's discretion.

       provide for the waiver of the health requirement for persons who were illegally in Australia before 19 December 1989 (when the Principal Regulations were introduced), and who would now be eligible to remain on the grounds of strong family ties with an Australian citizen or permanent resident. This amendment has been made retrospective to 10 December 1990 when the policy was introduced so as to benefit persons who have already applied under the scheme.

       allow the spouse of a person sponsored by relatives in Australia to qualify as the principal applicant where the spouse can obtain the points needed to qualify and the person being sponsored is unable to do so. This situation has been a longstanding Department practice but was not provided for in the Regulations. Accordingly this amendment has been made retrospective to 19 December 1989 when the Regulations were introduced to ensure that persons granted entry in accord with this practice are not disadvantaged. The amendment is beneficial to all applicants.

       make a number of technical and stylistic amendments.

All retrospective amendments are beneficial to applicants and no person will be disadvantaged. The retrospectivity is therefore not in conflict with provisions of the Acts Interpretation Act 190l.

Details of the Regulations are set out in the Attachment.

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

Cabinet Minute No 14592 of 24 October 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 regulations 11.3, 11.4, 12, 14.1, 14.2, 14.3, 14.4 and 17.3) to commence on 27 February 1991. Those regulations made retrospective have been made retrospective to benefit individuals or to correct technical drafting problems. No disadvantage to individuals will occur.

Regulation 2 - Amendment

This regulation provides for the Migration Regulations to be amended.

Regulation 3 - Regulation 13 (Grant of Visa)

Regulation 13(2)(a) of the Migration Regulations provides that certain entry visas operating as entry permits may not operate as permanent entry permits. This regulation amends Regulation 13 to cover the new domestic protection (temporary) visa.

Regulation 4 - New Regulation 22C

Allows an application for refugee status or for reconsideration of the rejection of such an application to be an application for a domestic protection (temporary) visa or entry permit. This means that persons applying for refugee status before 10 December 1990 when the new arrangements for refugees came into effect have automatic access to the new scheme.

Regulation 5 - Regulation 40 (Prescribed change 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, so that persons who have become illegal entrants, are applying for refugee status and wish to apply for a domestic protection (temporary) entry permit before 1 July 1991 will not be prevented from so applying.

Regulation 6 - Regulation 48 (Business (joint venture) visa)

This regulation corrects a technical error.

Regulation 7 - Regulation 98E (Conditions - student (category B) visa)

This regulation corrects typographical errors.

Regulation 8 - Regulation 117 (Refugee (restricted) visa or entry permit)

This regulation deletes regulation 117. This regulation provides for the grant of a refugee (restricted) visa or entry permit which is to be replaced by the domestic protection (temporary) visa or entry permit. (See regulation 9).

Regulation 9 - New Regulations 117A and 117B

Domestic protection (temporary) entry permit

This regulation (117A) provides for the grant of a domestic protection (temporary) entry permit to a person who is in Australia and has been granted refugee status by the Minister. It provides for a stay of 4 years.

Domestic protection (temporary) visa

This regulation (117B) provides for the visa class corresponding to the domestic protection (temporary) entry permit.

Regulation 10 - Regulation 121 (Grant of temporary entry permits to holders of working holiday visas or entry permits or of prescribed temporary entry permits)

This regulation provides for a number of technical and stylistic changes.

Regulation 11 - Regulation 144 (Waiver of health criteria)

11.1 - deletes certain items which are no longer relevant as the visa/entry permit classes to which they relate have been deleted.

11.2 - makes a technical correction.

11.3 - provides for a health waiver for a PRC (temporary) visa or entry permit. (PRC means People's Republic of China.) It has been made retrospective to 12 July 1990 when this when this visa and entry permit were created in order to ensure no applicant is disadvantaged by the absence of the power to waive the health criteria.

11.4 - provides for a health waiver for applicants for December 1989 (temporary) and December 1990 (permanent) visa and entry permit applicants. It has been made retrospective to 10 December 1990.

Regulation 12 - New Regulation 147A

This regulation makes provision in the Regulations for the allocating of points to a spouse of a person sponsored by relatives in Australia, where the person sponsored cannot obtain sufficient points to be allowed to migrate, but the spouse can obtain that score if granted the sponsorship points allocated to the person being sponsored.

This "switching" of points between spouses has been a longstanding practice in the Department, and failure to provide for it retrospectively in the Regulations would disadvantage those people who have been granted entry to Australia on the basis of the practice. It is a change which is beneficial to all applicants.

Regulation 13 - Regulation 173A (Reconsideration of a decision to refuse to grant a visa or entry permit)

This regulation makes a technical correction.

Regulation 14 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

14.1, 14.2 and 14.3 make technical amendments.

14.4       is an amendment consequential on the creation of regulation 147A (see regulation 12 above).

14.5       deletes a reference to the refugee (restricted) visa as a result of its deletion (see regulation 8 above).

14.6       provides for the visa code number consequent on the creation of the domestic protection (temporary) visa.

Regulation 15 - Schedule 3 (Classes of entry permits)

This regulation deletes the reference to the refugee (restricted) entry permit and inserts a code number for the domestic protection (temporary) entry permit.

Regulation 16 - Schedule 5 (Mandatory conditions for grant of visas and entry permits)

This regulation deletes the reference to the refugee (restricted) visa/entry permit and inserts a reference to the domestic protection (temporary) visa/entry permit.

Regulation 17 - Schedule 8 (Fees)

17.1       deletes the reference to the refugee (restricted) visa.

17.2       inserts the application fee for a domestic protection (temporary) visa.

17.3       changes the application fee for the refugee (restricted) entry permit from $250 to $30. This has been made retrospective to 12 July 1990, as the $250 fee was inserted in error, and retrospectively provides for either refund of the fee or regularises those instances where only a fee of $30 was charged.

17.4       inserts the application fee for a domestic protection (temporary) entry permit.


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