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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 278
EXPLANATORY STATEMENTSTATUTORY RULES 1992 No. 278
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:
• remove the requirement for prepayment of tuition fees before grant of a student visa;
• add students who are resident in Hong Kong and Taiwan to students considered to be from "low risk" countries and whose accompanying dependants are therefore subject to less stringent requirements for grant of a student visa and entry permit;
• add a terminating condition to the PRC (temporary) visa requiring that where the holder was granted a PRC (temporary) entry permit on the grounds of being a PRC citizen in Australia on 20 June 1989, the holder must not travel to the People's Republic of China (PRC);
• extend the citizens of the former Socialist Federal Republic of Yugoslavia (temporary) entry permit to 31 January 1993;
• extend the Sri Lankan entry permit to 31 October 1992;
• extend regulation 122A (which enables grant of further student entry permits to certain students whose entry permits have expired) to 1 June 1993;
• amend the processing entry permit so that all applicants for permanent entry and all applicants for an extended eligibility entry permit must "apparently meet" the criteria for those entry permits;
• make a number of amendments to clarify provisions and correct unintended consequences.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
Subregulation 1.1 provides for regulations 8 and 19 to commence on 1 October 1992.
These regulations make amendments relating to processing entry permits.
Subregulation 1.2 provides for regulations 13 and subregulation 14.1 to commence on 1 October 1992. These amendments omit the need for students to prepay their tuition fees before a student visa can be granted.
Subregulation 1.3 provides for regulations 16 and 17 to have a retrospective commencement of 31 July 1992. These amendments extend the period for which the Citizens of the former Socialist Federal Republic of Yugoslavia (temporary) entry permit and the Sri Lankan (temporary) entry permit can be granted, from 31 July 1992 to 31 January 1993 and 31 October 1992, respectively. This amendment is beneficial to those concerned and no-one will be disadvantaged by retrospectivity.
Subregulation 1.4 provides for regulation 18 to have a retrospective commencement date of 1 June 1992. This amendment enables certain students whose entry permits have expired to apply for further student entry permits. This amendment is beneficial to those concerned and no-one will be disadvantaged by retrospectivity.
Subregulation 1.5 provides for regulation 21 to have a retrospective commencement date of 1 May 1992. This amendment corrects a condition applied to the business visitor (short stay) visa relating to work rights. This amendment is beneficial to those concerned and no-one will be. disadvantaged by retrospectivity.
The remaining regulations would commence on gazettal.
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 adds a new definition "AUD", to mean that the amount of money stated is in Australian dollars.
Regulation 4 - Regulation 16 (Effect and operation of visas)
This regulation adds a new terminating condition to paragraph 16(8)(g) of the Migration Regulations - the condition that the holder must not travel to the PRC.
Regulation 5 - Regulation 17 (Conditions in connection with grant of visas)
This regulation amends paragraph 17(1)(q) of the Migration Regulations so that the condition listed in that paragraph can apply to business visitor (short stay) visas as well as business visitor visas.
Regulation 6 - Regulation 27 (Effect and operation of entry permits)
This regulation adds a new terminating condition to paragraph 27(3)(f) of the Migration Regulations - the condition that the holder must not travel to the PRC.
Regulation 7 - Regulation 28 (Conditions in connection with grant of temporary entry permits)
This regulation amends paragraph 28(1)(o) of the Migration Regulations so that the condition listed in that paragraph can apply to business visitor (short stay) entry permits as well as business visitor entry permits.
Regulation 8 - Regulation 35AA (Grant of entry permit - illegal entrants)
Under subregulation 35AA(2) of the Migration Regulations, regulation 35AA may not be used to grant an entry permit to an illegal entrant more than once. This amendment amends subregulation 35AA(2) so that this provision does not apply to grant of a processing entry permit.
Regulation 9 - Regulation 48A (Business skills visa)
This regulation amends regulation 48A of the Migration Regulations to replace references to "enterprise" with "business or principal business" as this term more clearly reflects the policy intention and is more consistent with terminology used elsewhere.
This regulation also makes a number of other minor amendments to regulation 48A of the Migration Regulations which clarify the policy intention by making the wording more precise.
Regulation 10 - Regulation 48B (Business skills (senior executive) visa)
This regulation amends regulation 48B of the Migration Regulations to replace references to "enterprise" with "business or principal business" as this term more clearly reflects the policy intention and is more consistent with terminology used elsewhere.
This regulation also makes a number of other minor amendments to regulation 48B of the Migration Regulations which clarify the policy intention by making the wording more precise.
Regulation 11 - Regulation 87B (Occupational trainee visa)
Paragraph 87B(1)(c) requires a nomination to be lodged before a decision on an application for an occupational trainee visa is made. This regulation amends this provision so that the application must be lodged and approved before a decision on the application is made.
Regulation 12 - Regulation 95 (Return visa. Class B)
This regulation omits paragraph 95(a) of the Migration Regulations as there is doubt about the power to grant a visa to an Australian citizen.
Regulation 13 - Regulation 98B (Student (category A) visa)
This regulation omits paragraph 98B(1)(d) of the Migration Regulations to remove the requirement that tuition fees be prepaid before a student (category A) visa is granted.
Regulation 14 - Regulation 98D (Student (category B) visa)
Subregulation 14.1 omits paragraph 98D(1)(d) of the Migration Regulations to remove the requirement that tuition fees be prepaid before a student (category B) visa is granted.
Subregulation 14.2 inserts sub-subparagraph 98D(3)(a)(i)(CA) to provide that an applicant who is normally resident in and has an unlimited right of re-entry to Hong Kong or Taiwan is to be considered as an applicant from a "low risk" country (countries from which students studying in Australia have low overstay rates) as distinguished from a "high risk" country (from which students have a high overstay rate). Less stringent conditions apply to dependants of students from "low risk" countries. Hong Kong and Taiwan were not specified by notice in the Gazette as being "low risk" countries, as the notice referred only to citizens of specified countries rather than residents, and students from Hong Kong and Taiwan are not considered to be citizens of those places.
Regulation 15 - Regulation 107B (PRC (temporary) visa)
Subregulation 15.1 omits paragraph 107B(1)(a) of the Migration Regulations and substitutes a new paragraph which requires that an applicant for a PRC (temporary) visa who was not granted a PRC (temporary) entry permit as the spouse or dependent child of the holder of such an entry permit, must make a written declaration that he or she does not intend to travel to the PRC while the holder of a PRC (temporary) visa.
Subregulation 15.2 omits subregulation 107B(4) of the Migration Regulations and substitutes a new subregulation which provides that a PRC (temporary) visa granted to a person who is the holder of a PRC (temporary) entry permit which was granted on the grounds of being a PRC citizen in Australia on 20 June 1989, is subject to the terminating condition that the person must not travel to the PRC.
Regulation 16 - Regulation 118 (Citizens of the former Socialist Federal Republic of Yugoslavia (temporary entry permit)
This regulation amends regulation 118 of the Migration Regulations to extend the period for which this entry permit can be granted to 31 January 1993.
Regulation 17 - Regulation 119G (Sri Lankan (temporary) entry permit)
This regulation amends regulation 119G of the Migration Regulations to extend the period for which this entry permit can be granted to 31 October 1992.
Regulation 18 - Regulation 122A (Grant of temporary entry permit to certain former holders of student visas or entry permits, or of prescribed temporary entry permits)
Regulation 122A enables grant of further student entry permits to certain students whose entry permits have expired. This regulation amends paragraph 122A(d) of the Migration Regulations so that instead of having to apply for the relevant entry permit before 1 June 1992, the applicant must apply before 1 June 1993.
Regulation 19 - Regulation 131 (Processing entry permit)
This regulation makes a number of amendments to regulation 131 of the Migration Regulations so that all applicants for permanent entry permits and extended eligibility entry permits must apparently meet the prescribed criteria for the entry permit for which they have applied before a processing entry permit can be granted.
Regulation 20 - Regulation 140 (Family and other close ties entry permit)
Regulation 164D of the Migration Regulations requires that a bond be paid in respect of an "item 2" assurance which is the mandatory assurance of support listed at item 2 in Schedule 1.
The requirement for a mandatory assurance of support for some applicants for the family and other close ties entry permit is included in paragraph 140(1)(c) and is not listed in Schedule 3 as a mandatory requirement for an "Item 2" assurance of support because an assurance of support is not mandatory for all applicants for this entry permit.
This regulation amends paragraph 140(1)(c) of the Migration Regulations to make it clear that the assurance of support is the same as that referred to in item 2 of Schedule 1.
Regulation 21 - Schedule 5 (Mandatory conditions for grant of visas and entry permits)
This regulation corrects an error in that previously business visitors (short stay) visas and entry permits were subject to a mandatory condition that the holder was not to perform any work without permission in writing of the Secretary. The amendment will change the mandatory condition to the same one as that for the business visitor visas and entry permits, whereby (unless the Secretary gives permission in writing to do otherwise) the holder is permitted to undertake work in Australia that is relevant to the conduct of the business or performance of the tasks specified in the visa application.
Regulation 22 - Schedule 9 (Business skills points test)
This regulation amends Division 1 of Schedule 9 to make it clear that the "years" referred to are fiscal "years", and that the amounts of money stated are in Australian dollars.