Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 51

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 51

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 GovernorGeneral 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;

       create five new "short stay visitor visas" for visitors who wish to visit Australia for less than three months. A new criterion has been added to each of the current visitor visas so that an applicant must intend to visit Australia for more than three months. There will be no fee for short stay visitor visas but extensions of stay in Australia as short stay visitors beyond three months will not be granted;

       create three new visa classes to provide for the entry into Australia for persons from particular minority groups who need special assistance. The groups are:

-       East Timorese living in Portugal;

-       Croatians, Slovenians and Yugoslavs who have been displaced from their homes;

-       certain minorities of the former USSR;

       amend the regulations governing the entry into Australia of students to:

-       ensure that all AIDAB scholarship schemes are covered; and

-       add a new condition to require that adequate arrangements are made for the education of all school age dependants of students;

       enable persons granted occupational trainee visas and entry permits after 1 January 1992 to apply for entry permits in other temporary resident classes;

       include a new schedule setting out equivalent amounts to the Australian dollar in thirteen other currencies and to provide a formula for calculating other currency equivalents. This amendment is to minimise administrative problems caused by fluctuating exchange rates;

       make a number of technical amendments and other minor amendments to correct unintended consequences.

       provide for the public interest criterion which enables the Minister to grant a visa or an entry permit where the Minister, acting personally, is satisfied that a person who is a member of a body declared by the Minister as a body for the purposes of the regulation, is not likely to become involved in criminal or illegal activities inside or outside Australia, to continue in force until 30 November 1992.

The amendment made by subregulation 34.2 is retrospective but as it is beneficial to individuals and no person will be disadvantaged, it is not in conflict with the provisions of the Acts Interpretation Act 1901.

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

ATTACHMENT

Regulation 1 - Commencement

Subregulations 1.1, 1.4, and 1.8 provide for regulations relating to amendments made to the student regulations to commence on 1 March 1992.

Subregulations 1.10 and 1.12 provide for the amendments relating to payment of fees in foreign currencies to commence on 16 March 1992.

Subregulation 1.6 provides for a regulation limiting the period within which an employer nomination can be valid, to commence on 30 March 1992.

Subregulations 1.2, 1.3, 1.5, 1.7 and 1.11 provide for regulations relating to the new short stay visitor regulations, introduced by these Regulations, to commence on 1 May 1992.

Subregulation 1.9 provides for a retrospective commencement date of 1 January 1992 for the amendment which will allow an occupational trainee in Australia to obtain a further temporary resident entry permit in Australia. Previously they could only obtain further occupational trainee entry permits. As this amendment is beneficial to individuals and no person will be disadvantaged, it is not in conflict with the provisions of the Acts Interpretation Act 1901.

Regulation 2 - Amendment

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

Regulation 3 - Regulation 2 (Interpretation)

Subregulation 3.1, 3.2, 3.3 and 3.7 make minor amendments to the definitions of "assisted student" and "private subsidised student" in regulation 2 of the Migration Regulations to clarify possible ambiguities and to ensure that the various schemes administered by AIDAB are covered.

Subregulation 3.4 adds an extra criterion to the definition of "public interest criteria" to require that a person's presence in Australia would not be prejudicial to the international relations of Australia; and

Subregulation 3.5 adds a new definition of "school age dependant". This definition is required as a consequence of amendments made to the student regulations in relation to school age dependants of students; and

Subregulation 3.6 adds a new definition of "short stay visitor visa and entry permits" as a consequence of the introduction by these Regulations of five new visas which are referred to as short stay visitor visas.

Subregulation 3.8 amends the definition of visitor visa to include the new short stay visitor visas introduced by these Regulations.

Regulation 4 - Regulation 13 (Grant of visa)

This regulation amends regulation 13 of the Migration Regulations to include the new short stay visitor visas and provide that when they are granted as entry visas, they do not have effect as permanent entry permits.

Regulation 5 - Regulation 16 (Effect and operation of visas)

This regulation amends, regulation 16 of the Migration Regulations to provide for the new conditions, which are to be imposed under regulations 98C and 98E requiring that suitable arrangements be made for the education of school age dependants of students, to be terminating conditions.

Regulation 6 - Regulation 17 (Conditions in connection with grant of visas)

This regulation adds two new conditions to regulation 17 of the Migration Regulations:

-       to restrict occupational trainees to work related to the training they are undertaking except with the written permission of the Secretary; and

-       to require dependants of occupational trainees to have written permission of the Secretary to undertake any work.

Regulation 7 Regulation 28 (Conditions in connection with grant of temporary entry permits)

This regulation adds two new conditions to regulation 28 of the Migration Regulations:

-       to restrict occupational trainees to work related to the training they are undertaking except with the written permission of the Secretary; and

-       to require dependants of occupational trainees to have written permission of the Secretary to undertake any work.

Regulation 8 - Regulation 40 (Prescribed change in circumstances - paragraphs 36(1)(a) and 37(2)(a) of the Act)

This regulation amends paragraph 40(1)(d) of the Migration Regulations as a consequence of the amendment of subparagraph 127(a)(iii) by Statutory Rules 418 of 1991, so that eligibility is no longer required to arise as result of the death or permanent incapacitation of another person.

This regulation also amends paragraph 40(1)(k) to set out certain objective criteria to be met so that a prescribed change in circumstances has occurred and a person can apply for a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit. Previously, in order to be an applicant a person had to meet the criteria for one of those entry permits. Accordingly if the person did not meet the criteria he/she could not lodge an application, was therefore not an applicant, and therefore could not obtain review of the de facto decision to reject the application, as in law no decision had been reached.

Regulation 9 - Regulation 42 (Prescribed criteria - entry permits)

This regulation amends subregulation 42(2) of the Migration Regulations to include reference to the new short stay visitor visas which are introduced by these Regulations. It also makes a minor amendment to include reference to items 85 to 89 of Schedule 3, which were previously omitted in error.

Regulation 10 - Regulation 48A (Business skills visa)

This regulation corrects an error by omitting subregulation 48A(3) of the Migration Regulations as the definition which was included in that subregulation was included in subregulation 48A(1) by Statutory Rules No. 22 of 1992.

Regulation 11 - Regulation 51 (Employer nomination visa)

This regulation adds an extra criterion to this regulation to ensure that where an application is made overseas, the employer nomination on which approval for entry will be based, will have been approved within a specified period prior to the date of application or decision. This amendment ensures that approvals made in relation to a job vacancy in Australia are made on the basis of up-to-date labour market information.

Regulation 12 - Regulation 87B (Occupational trainee visa)

This regulation adds an extra paragraph (c) to regulation 87B of the Migration Regulations to require that at the time of decision on an application, an approved nomination (defined in regulation 2 of the Migration Regulations) has been lodged.

Regulation 13 - Regulation 88 (Business visitor visa)

This regulation amends regulation 88 of the Migration Regulations as a consequence of the introduction of short and long stay visitor visas. The business visitor visa will be a long stay visitor visa and the amendment adds an additional criterion that the applicant seeks to stay in Australia for more than 3 months.

Regulation 14 - New Regulation 88A

This regulation adds a new regulation 88A to the Migration Regulations - Business visitor (short stay) visa. The criteria for this visa are the same as for regulation 88 (business visitor visa) except that the length of stay in Australia under this visa will not exceed 3 months.

Regulation 15 - Regulation 89 (Close family visitor visa)

This regulation amends regulation 89 of the Migration Regulations as a consequence of the introduction of short and long stay visitor visas. The close family visitor visa will be a long stay visitor visa and the amendment adds an additional criterion that the applicant seeks to stay in Australia for more than 3 months.

Regulation 16 - New Regulation 89A

This regulation adds a new regulation 89A to the Migration Regulations - Close family visitor (short stay) visa. The criteria for this visa are the same as for regulation 89 (close family visitor visa) except that the length of stay in Australia under this visa will not exceed 3 months.

Regulation 17 - Regulation 90 (Medical treatment visa)

This regulation makes a minor technical amendment to regulation 90 of the Migration Regulations.

This regulation also amends regulation 90 as a consequence of the introduction of short and long stay visitor visas. The medical treatment visa will be a long stay visitor visa and the amendment adds an additional criterion to provide that the applicant seeks to stay in Australia for more than 3 months.

Regulation 18 - New Regulation 90A

This regulation adds a new regulation 90A to the Migration Regulations - Medical treatment (short stay) visa. The criteria for this visa are the same as for regulation 90 (medical treatment visa) except that the length of stay in Australia under this visa will not exceed 3 months.

Regulation 19 - Regulation 21 (Tourist visa)

This regulation amends regulation 91 of the Migration Regulations as a consequence of the introduction of short and long stay visitor visas. The tourist visa will be a long stay visitor visa and the amendment adds an additional criterion to provide that the applicant seeks to stay in Australia for more than 3 months.

Regulation 20 - New Regulation 91A

This regulation adds a new regulation 91A to the Migration Regulations - Tourist (short stay) visa. The criteria for this visa are the same as for regulation 91 (tourist visa) except that the length of stay in Australia under this visa will not exceed 3 months.

Regulation 21 - Regulation 93 (Visitor (other) visa)

This regulation amends regulation 93 of the Migration Regulations as a consequence of the introduction of short and long stay visitor visas. The visitor (other) visa will be a long stay visitor visa and the amendment adds an additional criterion to provide that the applicant seeks to stay in Australia for more than 3 months.

Regulation 22 - New Regulation 93A

This regulation adds a new regulation 93A to the Migration Regulations - visitor (other) (short stay) visa. The criteria for this visa are the same as for regulation 93 (visitor (other) visa) except that the length of stay in Australia under this visa will not exceed 3 months.

Regulation 23 - Regulation 98B (Student (category A) visa)

This regulation makes a minor amendment to subregulation 98B(1) of the Migration Regulations to ensure that all the various schemes administered by AIDAB are covered.

The Department of Employment, Education and Training in conjunction with State/Territory government representatives, has developed a national charging policy for the education of school age dependants of overseas students.

As a consequence, this regulation also amends regulation 98B to provide that when an applicant for a student (category A) visa has a school age dependant who intends to stay in Australia for more than 3 months, the applicant must produce evidence that adequate arrangements have been made in Australia for the education of that dependant.

This provision will not apply when the applicant holds a student visa applied for before 1 March 1992, or when seeking a further period of stay to continue a course of study which had been commenced before 1 March 1992.

Regulation 24 - Regulation 98C (Conditions - student (category A) visa)

This regulation amends regulation 98C of the Migration Regulations to add terminating conditions requiring that the holder of a student (category A) visa maintain adequate arrangements for the education of any school age dependants staying in Australia for more than 3 months.

This provision will not apply- when the applicant holds a student visa applied for before 1 March 1992 or when seeking a further period of stay to continue a course of study which had been commenced before 1 March 1992.

Regulation 25 - Regulation 98D (Student (category B) visa)

The Department of Employment, Education and Training in conjunction with State/Territory government representatives, has developed a national charging policy for the education of school age dependants of overseas students.

As a consequence, this regulation amends regulation 98D of the Migration Regulations to provide that when an applicant for a student (category B) visa has a school age dependant who intends to stay in Australia for more than 3 months, the applicant must produce evidence that adequate arrangements have been made in Australia for the education of that dependant.

This provision will not apply when the applicant holds a student visa applied for before 1 March 1992 or when seeking a further period of stay to continue a course of study which had already been commenced before 1 March 1992.

Regulation 26 - Regulation 98E (Conditions - student (category B) visa)

This regulation amends regulation 98E of the Migration Regulations to add terminating conditions requiring that the holder of a student (category B) visa maintain adequate arrangements for the education of any school age dependants staying in Australia for more than 3 months.

This provision will not apply when the applicant holds a student visa applied for before 1 March 1992 or when seeking a further period of stay to continue a course of study which had been commenced before 1 March 1992.

Regulation 27 - Regulation 99 (Division to cease to have effect)

This regulation omits regulation 99 of the Migration Regulations which provided that Division 3 of Part 3 and Part 2 of Schedule 2 would cease to have effect on 31 March 1992. This regulation has been repeatedly extended and it has now been decided that it is no longer required in view of a number of measures, especially the capping mechanism (in subsections 23(3A) and 33(3A) of the Migration Act, inserted by the Migration Amendment Act (No. 2) 1991).

Regulation 28 - New Regulations 107D, 107E and 107F

This regulation creates three new visa classes to provide for the entry into Australia of persons from particular minority groups who need special assistance. The groups are:

       East Timorese living in Portugal;

       Croatians, Slovenians and Yugoslavs who have been displaced from their homes;

       certain minorities of the former USSR;

The number of persons who can be approved under each of these visa classes is limited.

Regulation 29 - Regulation 108 (Grant of visa or entry permit to family unit members)

This regulation makes a minor technical amendment to regulation 108 of the Migration Regulations.

Regulation 30 Regulation 120 (Grant of temporary entry permit to holder of visitor visa, visitor entry permit or prescribed temporary entry permit)

This regulation amends regulation 120 of the Migration Regulations to exclude grant of short stay visitor entry permits to persons who are in Australia as long-term visitors. Short stay entry permits will only be able to be granted in Australia to persons who already hold short stay visitor entry permits and whose total period of stay will not exceed 3 months and will be granted under the new regulation 120A inserted by these Regulations.

Regulation 31 - New Regulation 120A

This regulation adds a new regulation 120A to the Migration Regulations - Grant of further short stay entry permit to holder of short stay visitor visa or entry permit. This regulation will provide for the grant of further short stay visitor entry permits but only to persons who already hold short stay visitor entry permits and whose total period of stay will not exceed 3 months.

Regulation 32 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 exclude grant of a short stay visitor entry permit under this regulation. Short stay entry permits will only be able to be granted in Australia to persons who already hold short stay visitor entry permits and whose total period of stay will not exceed 3 months and will be granted under the new regulation 120A inserted by these Regulations.

Regulation 33 - Regulation 122 (Grant of temporary entry permits to holders of certain student visas or entry permits, or of prescribed temporary entry permits)

This regulation amends regulation 122 of the Migration Regulations to exclude grant of a short stay visitor entry permit under this regulation. Short stay entry permits will only be able to be granted in Australia to persons who already hold short stay visitor entry permits and whose total period of stay will not exceed 3 months and will be granted under the new regulation 120A inserted by these Regulations.

Regulation 34 - Regulation 125 (Prescribed criteria for grant of temporary entry permits to lawful temporary residents or holders of prescribed temporary entry permits)

This regulation amends regulation 125 of the Migration Regulations to exclude grant of a short stay visitor entry permit under this regulation. Short stay entry permits will only be able to be granted in Australia to persons who already hold short stay visitor entry permits and whose total period of stay will not exceed 3 months and will be granted under the new regulation 120A inserted by these Regulations.

This regulation also amends regulation 125 to omit subregulation 125(2)(g) which prevented an occupational trainee in Australia from obtaining a further temporary resident entry permit in Australia other than a further occupational trainee entry permit.

Regulation 35 - Regulation 144 (Waiver of health criteria)

This regulation makes a number of minor technical and updating amendments to regulation 144 of the Migration Regulations.

Regulation 36 - Regulation 145 (Prescribed qualifications and prescribed number of points)

This regulation makes a minor technical amendment to regulation 145 of the Migration Regulations.

Regulation 37 - Regulation 146 (Qualifications - suitability for employment)

Regulation 37.1 makes a minor technical amendment to regulation 146 of the Migration Regulations.

Regulation 37.2 omits some words from paragraph 146(1)(k) which are unnecessary because this paragraph is subject to subregulation 146(2A).

Statutory Rules 22 of 1992 inserted a new subregulation 146(2A) into the Migration Regulations. The provisions of this subregulation applied to the whole of regulation 146. It was intended, however, that these provisions should apply only to paragraph 146 (1)(k). Regulation 37.3 amends subregulation 146(2A) to provide for this.

Regulation 37.4 makes a minor amendment to subregulation 146(2A) to clarify that the overseas qualification may be assessed by the relevant Australian authority to be of at least equivalent standard to the corresponding Australian award.

Regulation 38 - New regulation 183AA

This regulation inserts a new regulation 183AA into the Migration Regulations Payment of fees in foreign currencies.

Previously fees specified in the Regulations were exclusively in terms of Australian dollars. In order to minimise administrative problems due to fluctuating exchange rates, this regulation provides for fees to be paid at the exchange rate specified in the new Schedule 8A inserted by these Regulations.

This regulation also provides a formula for determining the currency equivalents other than those included in Schedule 8A.

Regulation 39 - Regulation 185 (fee on application for temporary entry permits granted only in Australia)

This regulation amends regulation 185 of the Migration Regulations as a consequence of the introduction of the new short stay visitor visas and entry permits introduced by these Regulations.

Regulation 40 - Regulation 194 (Refund of fees)

This regulation amends regulation 194 of the Migration Regulations to provide that when a fee is paid in a particular currency, a refund may also be paid in that currency.

Regulation 41 - Regulation 204 (Fees - certain visitor visas)

This regulation omits regulation 204 of the Migration Regulations and substitutes a new regulation 204 which also provides that there is no fee for short stay visitor visas unless it is for a visa referred to in subregulation 204(2).

Regulation 42 - Schedule 2 (Classes of visas. prescribed criteria and code numbers)

This regulation amends Schedule 2, Part 1 of the Migration Regulations to change the code numbers of items 45 - 48 and item 50 (business visitor, close family visitor, medical treatment, tourist and visitor visas) to distinguish the new long stay visitor visas from the existing visitor visas.

This regulation also adds new items 64, 65, 66, 67 and 68 to Part 1 of Schedule 2 ,as a result of the introduction of the new short stay visitor visas by these Regulations.

This regulation also adds new items 9, 10 and 11 to Part 2 of Schedule 2 as a result of the introduction of the new "special assistance" visas introduced as regulations 107D, 107E and 107F by these Regulations.

Regulation 43 - Schedule 3 (Classes of entry permits)

This regulation adds new items 34D, 34E and 34F to Part 1 of Schedule 3 as a result of the introduction of the new "special assistance" visas introduced as regulations 107D, 107E and 107F by these Regulations.

This regulation also adds new items 67A, 69A, 70A, 72AA and 72B to Class 4 of Schedule 3 as a result of the introduction of the new short stay visitor visas by those Regulations (See subregulation 43.6) and changes the code numbers of items 67, 69, 70, 72 and 72A in accord with subregulation 43.2.

Regulation 44 - Schedule 5 (Mandatory conditions for grant of visas and entry permits)

This regulation adds the new short stay visitor visas introduced by these Regulations to items 1, 3 and 9 of Schedule 5 of the Migration Regulations.

This regulation also adds a new item 17 to Schedule 5 of the Migration Regulations:

-       to restrict occupational trainees to work related to the training they are undertaking except with the written permission of the Secretary; and

-       to require dependants of occupational trainees to have written permission of the Secretary to undertake any work.

Regulation 45 - Schedule 8 (Fees)

This regulation adds new items 88, 89 and 90 to Part 1 of Schedule 8 of the Migration Regulations to indicate that there is no fee for the new "special assistance" visas introduced as regulations 107D, 107E and 107F by these Regulations.

This regulation also adds items 92 to 96 to Part 1 of Schedule 8 as a result of the introduction of the new short stay visitor visas by these Regulations.

Regulation 46 - New Schedule 8A

This regulation adds a new Schedule 8A to the Migration Regulations. This Schedule sets out equivalent amounts to the Australian dollar in thirteen other currencies (See also new regulation 183AA inserted by these Regulations.)

Regulation 47 - Amendment of Statutory Rule 1991 No. 349

Under SR 349 of 1991 the regulation which enables the Minister to grant a visa or entry permit to a person where the Minister, acting personally, is satisfied that a person who is a member of a body (declared by the Minister for the purposes of the regulation) is not likely to become involved in criminal or illegal activities inside or outside Australia, was to cease being in force on 6 March 1992. This regulation provides for the regulation to remain in force until 30 November 1992.


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