Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 22

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 22

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

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 regulations to be made providing for different classes of visas and entry permits. The purpose of the Regulations is to:

       make minor technical amendments to the business skills regulations;

       make necessary amendments to the regulations governing the entry into Australia of students, to reflect the transfer from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs of certain functions relating to students;

       omit the Soviet Concession visa as the visa is no longer required;

       enable working holiday makers to extend their stay in Australia up to a total maximum stay of 12 months;

       enable persons who applied before 15 April 1991 for permanent residence on grounds of being the spouse of an Australian citizen or permanent resident and whose spouse died before the application was decided, to be granted permanent residence if they satisfy relevant criteria;

       ensure that applications lodged before 3 February 1992 for change of status to permanent entry on skills grounds, are not invalidated when an employer nomination had been lodged but had not been assessed and approved at the time of application;

       make amendments to the skills component of the points test in order to reduce complexity;

       introduce fees for visitors staying longer than 3 months or requiring a multiple entry visa valid for 4 years, and increase fees for temporary residents; and

       make a number of minor amendments to correct unintended consequences.

Some amendments are retrospective but are beneficial to individuals and no person will be disadvantaged. They are not in conflict with the provisions of the Acts Interpretation Act 1901.

Details of the Regulations, including retrospective provisions, are set out in the Attachment.

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

Cabinet Minute No 1649 of 16 December 1991

ATTACHMENT

Regulation 1 - Commencement

Subregulation 1.1 provides for regulations 6, 7 and 8 to commence on 17 February 1992. These regulations amend the new business skills regulations which were inserted by Statutory Rules No. 418 of 1991 and are to commence on 17 February 1992.

Subregulation 1.2 provides for subregulations 24.4, 24.5 and regulation 33 to commence on 1 March 1992. These regulations amend the skills components of the points test to reduce complexity.

Subregulation 1.3 provides for regulations 26, 27, 29 and 30 and subregulations 34.1, 34.2 and 34.4 to commence on 1 February 1992. Regulations 26 and 29 and subregulations 34.1 and 34.4 increase the application fee for temporary resident visas. Regulations 27 and 30 and subregulation 34.2 impose new fees on applications for certain visitor visas and entry permits.

Subregulation 1.4 provides for regulations 20 and 22 to have commenced on 1 October 1991. These amendments will allow applications for extended eligibility (spouse) entry permits and spouse (after entry) entry permits to be reconsidered where the application had been made before 15 April 1991 and a relationship had ended because of death of a spouse or domestic violence. Previously, only applications lodged after 15 April 1991 or still undecided by 1 October 1991 could be considered in these circumstances. These amendments are clearly beneficial to those involved and no individual is disadvantaged.

Subregulation 1.5 provides for regulations 21 and 23 to have come into operation on 15 April 1991. These regulations amend regulations 128 and 139 of the Migration Regulations to ensure the validity of applications for extended eligibility (economic) entry permits or skilled occupation entry permits where employer nominations had been lodged but not actually approved at time of application. This amendment is clearly beneficial to all those involved and no individual is disadvantaged.

Regulation 2 - Amendment

This regulation provides for the Migration Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 2 (Interpretation)

This regulation amends the definitions of "category A course" and "category B course" following the transfer, from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs, of certain functions relating to the entry into Australia of students.

Regulation 4 - Regulation 8A (Interpretation - prescribed non-citizen)

This regulation makes a minor technical correction to regulation 8A of the Migration Regulations.

Regulation 5 - Regulation 20 (Reconsideration of application that is put aside

This regulation makes a minor technical amendment to regulation 20 of the Migration Regulations.

Regulation 6 - Regulation 48A (Business skills visa)

This regulation amends regulation 48A of the Migration Regulations to make a number of stylistic and technical changes to reflect policy more accurately.

This regulation also amends regulation 48A to require that the net assets of the applicant referred to in Part 4 of Schedule 9 must be available for transfer to Australia within two years of issue of a business skills visa.

This regulation further amends paragraph 48A(4)(b) of the Migration Regulations so that points gained under the language ability factor (see Part 3 of Schedule 9) are to be assessed at time of decision rather than at time of application. This is to cover the situation where an applicant may not obtain the necessary score at time of application, but by enrolling in an English language course may achieve the necessary points at time of decision.

Regulation 7 - Regulation 48B (Business skills (senior executive) visa)

This regulation amends regulation 48B of the Migration Regulations to make a number of stylistic and technical changes to reflect policy more accurately.

Paragraph 48A(2)(i) of the Migration Regulations requires an applicant for a business skills visa to sign a declaration that he or she acknowledges the Government's requirements in relation to entry to Australia as the holder of a business skills visa or entry permit. This regulation amends regulation 48B of the Migration Regulations to include the same requirement for senior executives qualifying under the Business Skills scheme.

Regulation 8 - New regulation 48C

This regulation inserts a new regulation 48C into the Migration Regulations to provide for the pass mark for the business skills point test, and for State or Territory Departments or Authorities responsible for the business development for the purposes of those organisations, to be specified by notice in the Gazette.

Regulation 9 - Regulation 49 (Distinguished talent (Australian support) visa)

This regulation omits paragraph (a) of regulation 49 of the Migration Regulations as this criterion was too procedurally complex to be realistically applied.

Regulation 10 - Regulation 50 (Distinguished talent and special service (independent) visa)

This regulation omits paragraph (a) of regulation 50 of the Migration Regulations as this criterion was too procedurally complex to be realistically applied.

Regulation 11 - Regulation- 62 (Entertainment visa)

This regulation makes a minor amendment to regulation 62 of the Migration Regulations to correct a citation following the recent portfolio changes.

Regulation 12 - Regulation 98B (Student (category A) visa)

This regulation makes a number of minor amendments to regulation 98B of the Migration Regulations as a result of the transfer, from the Department of Employment, Education and Training to this Department, of certain functions relating to student entry into Australia.

Regulation 13 - Regulation 98D (Student (category B) visa)

This regulation makes a number of minor amendments to regulation 98D of the Migration Regulations as a result of the transfer from the Department of Employment, Education and Training to this Department, of certain functions relating to student entry into Australia.

Regulation 14 - Regulation 106 (Camp clearance visa)

This regulation makes a minor technical and stylistic amendment to regulation 106 of the Migration Regulations.

Regulation 15 - Regulation 107A (Soviet- concession visa)

This regulation omits regulation 107A of the Migration Regulations - the Soviet Concession visa - as the visa is no longer required.

Regulation 16 - Regulation 118 (Yugoslav (temporary) entry permit)

This regulation amends regulation - 118 of the Migration Regulations, to restrict individuals, who hold permits of another class which are valid up to or beyond 30 April 1992 (the date on which this entry permit expires), from changing to this class in order to take advantage of certain conditions applicable to this class (eg: a person who holds a visitor entry visa or entry permit does not have permission to work, but by changing to this entry permit class could secure that right).

Regulation 17 - Regulation 119G (Sri Lankan (temporary) entry permit)

This regulation amends regulation 119G of the Migration Regulations, to restrict individuals who hold permits of another class which are valid up to or beyond 30 April 1992 (the date on which this entry permit expires), from changing to this class in order to take advantage of certain conditions applicable to this class (for example, a person who holds a visitor entry visa or entry permit does not have permission to work, but by changing to this entry permit class could secure that right).

Regulation 18 - Regulation 121 (Grant of temporary entry permits to holders of working holiday visas or entry permits or of prescribed temporary entry permits)

This regulation amends regulation 121 of the Migration Regulations to ensure that working holiday makers can extend their total period of authorised stay in Australia as working holiday makers, but not beyond 12 months. This condition has always been present in the policy guidelines, however, until now, no provision had been made for this in the Regulations.

Regulation 19 - Regulation 122 (Grant of temporary entry permit to holders of certain student visas or entry permits, or of prescribed temporary entry permits)

This regulation amends regulation 122 of the Migration Regulations as a result of the transfer of certain functions relating to students from the Department of Employment, Education and Training to this Department, so that the support of the Minister for Employment, Education and Training is required rather than his or her approval.

Regulation 20 - Regulation 126 (Extended eligibility (spouse) entry permit)

This regulation amends regulation 126 of the Migration Regulations to allow for the grant of an extended eligibility (spouse) entry permit to an applicant who applied for the entry permit before 15 April 1991 on the grounds of a marital relationship with an Australian citizen or permanent resident, but where, after the application, the Australian spouse died. Prior to this amendment grant of an extended eligibility (spouse) entry permit to an applicant whose spouse had died after application was restricted to applicants who applied on or after 15 April 1991, when the arrangements providing for the grant of this entry permit on these grounds were introduced.

This regulation also amends regulation 126 to remove the requirement that where the applicant applied before 15 April 1991, to be eligible under the special arrangements for applicants whose relationship with an Australian spouse breaks down as a result of domestic violence by that spouse, the application was not to have been decided by 1 October 1991.

Regulation 21 - Regulation 128 (Extended eligibility (economic) entry permit)

Regulation 128 of the Migration Regulations requires an applicant for an extended eligibility (economic) entry permit to satisfy the prescribed criteria in relation to an employer nomination visa (regulation 51). However since the amendment of regulation 51 and the insertion of Part 6A (Employer Nomination) by Statutory Rules No. 60 of 1991 with effect from 15 April 1991, under regulation 34A the employer nomination provisions are required to be met at time of application.

Many applications for the extended eligibility (economic) entry permit were, however, accepted when the employer nomination, although completed by the prospective employer, had not been assessed and approved (as the criteria required) at the time of application although they were subsequently assessed and approved by the time of decision.

This regulation amends regulation 128 of the Migration Regulations to ensure that where applications were lodged for an extended eligibility (economic) entry permit and the employer nomination had been lodged but not approved, the application was still valid so long as the employer nomination was subsequently approved.

Regulation 22 - Regulation 135 (Spouse (after entry) entry permit)

This regulation amends regulation 135 of the Migration Regulations to allow for the grant of a spouse (after entry) entry permit to an applicant who applied for the entry permit before 15 April 1991 on the grounds of a marital relationship with an Australian citizen or permanent resident, but where, after the application, the Australian spouse has died. Prior to this amendment grant of a spouse (after entry) entry permit to an applicant whose spouse had died after application was restricted to applicants who applied on or after 15 April 1991, when the arrangements providing for the grant of this entry permit on these grounds were introduced.

This regulation also amends regulation 135 to remove the requirement that where the applicant applied before 15 April 1991, to be eligible under the special arrangements for applicants whose relationship with an Australian spouse breaks down as a result of domestic violence by that spouse, the application was not to have been decided by 1 October 1991.

Regulation 23 - Regulation 139 (Skilled occupation entry permit)

Regulation 139 of the Migration Regulations requires an applicant for a skilled occupation entry permit to satisfy the prescribed criteria in relation to an employer nomination visa (regulation 51). However since the amendment of regulation 51 and the insertion of Part 6A (Employer Nomination) by Statutory Rules No. 60 of 1991 with effect from 15 April 1991, the employer nomination provisions are required under regulation 34A to be met at time of application.

Many applications were, however, accepted when the employer nomination, although completed by the prospective employer, had not been assessed and approved (as the criteria required) at the time of application although it was subsequently assessed and approved by the time of decision.

This regulation amends regulation 139 of the Migration Regulations to ensure that where an application was lodged for a skilled occupation entry permit and the employer nomination had been lodged but not approved, the application is still valid so long as the employer nomination was subsequently approved.

Regulation 24 - Regulation 146 (Qualifications - suitability for employment)

This regulation amends regulation 146 of the Migration Regulations to reduce complexity, without changing policy, in the skills part of the points test (see also the amendment to Schedule 4 of the Migration Regulations made by these regulations).

This regulation also makes a number of minor technical amendments to regulation 146.

Regulation 25 - Regulation 179A (Infringement notices and prescribed penalty)

This regulation amends regulation 179A of the Migration Regulations to provide that the Secretary or an officer authorised in writing by the Secretary, may extend beyond 28 days the period within which an infringement notice can be withdrawn and the fine refunded, provided the total period within which the notice may be withdrawn does not exceed 3 months. Experience has shown that 28 days is often insufficient time to resolve cases where an airline objects to an infringement notice being served.

This regulation also makes several minor technical amendments to regulation 179A.

Regulation 26 - Regulation 183A (Fee on application for a sport visa)

This regulation amends regulation 183A of the Migration Regulations to provide that the maximum fee payable on application for a sport visa is $130 (or $1300 for 10 or more applications). This increase on the previous maximum fee of $100 is in accordance with Cabinet Minute No 16149 of 16 December 1991.

Regulation 27 - Regulation 185 (Fee on application for temporary entry permits granted only in Australia)

This regulation amends regulation 185 of the Migration Regulations to provide that where a visitor enters Australia by means of a visitor visa for which there was no application fee payable (that is, a visitor visa to enable a short-term stay) and applies for a further visitor temporary entry permit which would take the total stay as a visitor beyond three months, a fee of $200 is payable in respect of the entry permit application. In accordance with Cabinet Minute No 16149 of 16 December 1991, this is an increase on the fee of $100 which was previously payable in respect of such an application.

Regulation 28 - Regulation 194 (Refund of fees)

This regulation inserts a new subregulation (1A) in regulation 194, to provide for refund of the application fee to the applicant's legal personal representative, where the applicant dies before the application is decided.

Regulation 29 - Regulation 201 (Fee on application for entertainment visa)

This regulation amends regulation 201 of the Migration Regulations to provide that the maximum fee payable in respect of an entertainment visa is $130. This increase on the previous maximum fee of $100 is in accordance with Cabinet Minute no 16149 of 16 December 1991.

Regulation 30 - New regulations 204 and 205

This regulation inserts a new regulation 204 in the Migration Regulations to provide for a fee of $30 to be payable on application for certain visitor visas, in accordance with Cabinet Minute no 16149 of 16 December 1991. The fee is payable in respect of applications for tourist, close family, business, family (other) and medical treatment visitor visas, where the length of the visit applied for exceeds three months or the period of the validity of the visa applied for is for four years or the life of the applicant's passport, whichever is the lesser. The fee will not be payable in respect of a visit visa where the applicant's visit has the support of the Australian government. There will continue to be no fee for a visitor visa where only a short-term (that is, three months or less) visit is intended.

This regulation also inserts a new regulation 205 in the Migration Regulations to enable the Minister to waive a visitor visa fee if it would be in the public interest to do so.

Regulation 31 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

This regulation omits item 8 of Part 2 of Schedule 2 as a consequence of the omission of the Soviet concession visa by these Regulations.

Regulation 32 - Schedule 3 (Classes of entry permits)

This regulation omits item 26 of Part 1 of Schedule 3 as a consequence of the omission of the Soviet concession visa by these Regulations.

Regulation 33 - Schedule 4 (prescribed qualifications and prescribed number of points)

This regulation amends a number of items in Schedule 4 of the Migration Regulations to reduce complexity in the skills part of the points test (see also the amendment to regulation 146 of the Migration Regulations made by these regulations).

Regulation 34 - Schedule 8 (Fees)

Subregulations 34.1 and 34.4 also amend Part 1 of Schedule 8 of the Migration Regulations to provide that for all temporary resident visas having an application processing fee of $100, the fee is increased to $130. This increase is in accordance with Cabinet Minute 16149 of 16 December 1991.

Subregulation 34.2 also amends Part 1 of Schedule 8 to provide that the fee on application for a business visitor, close family visitor, medical treatment, tourist, and visitor (other) visa is the fee ascertained under the new regulation 204, inserted in the Migration Regulations by these Regulations.

Subregulation 34.3 omits item 76 of Part 1 of Schedule 8 as a consequence of the omission of the Soviet concession visa by these Regulations.

Subregulation 34.5 also makes a minor technical amendment to item 6, Part 2 of Schedule 8.


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