Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1993 NO. 17

STATUTORY RULES 1993 No. 17

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 particular, paragraph 181(1)(a) enables regulations to be made for the charging and recovery of fees. 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 delete paragraph 186B(1)(b) of the Migration Regulations and to substitute a new paragraph 186B(1)(b). The new paragraph provides that an applicant for a spouse (after entry) entry permit who is the holder of a prospective marriage entry permit or prospective marriage visa authorising a stay for a period of six months must pay an application fee of $370. The effect of this provision is that an applicant holding a prospective marriage visa or entry permit for a period other than six months is not liable to pay the fee.

From the time of the implementation of the arrangements provided for under the replaced paragraph 186B(1)(b), applicants overseas were granted prospective marriage visas authorising a temporary stay in Australia for a period of six months only. Previous to the implementation of these arrangements the period of stay authorised for holders of these visas was always for a lesser period, generally three months. Holders of six months prospective marriage visas were advised that after marriage in Australia they would be required to apply for a spouse (after entry) entry permit and pay the application fee. Holders of prospective marriage visas authorising a stay for a period of less than six months were not advised of any liability to pay a fee on application for resident status.

To protect the position of holders of visas of less than six months who were granted visas prior to the implementation of the arrangements under the replaced paragraph 186B(1)(b), but who were not formally issued with visas prior to that time, and/or those who were not advised that they were liable to pay an application fee, new paragraph 186B(1)(b) has been inserted. The amendment operates retrospectively from 1 December 1992 so that the applicants concerned will be taken to have been exempt from the fee from the time of its introduction. This is entirely beneficial to the applicants concerned, and is not prejudicial to any person. Therefore retrospective operation is not contrary to the provisions of section 48 of the Acts Interpretation Act 1901.

Details of the regulations are:

•       Regulation 1 provides for these Regulations to have retrospective operation from 1 December 1992.

•       Regulation 2 provides for the Migration Regulations to be amended.

•       Regulation 3 provides for former paragraph 186B(1)(b) to be omitted, and substitutes new paragraph 186B(1)(b) requiring holders of a prospective marriage visa or entry permit authorising a stay of six months to pay the fee of $370.