Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1995 NO. 134

STATUTORY RULES 1995 No. 134

Issued by the Authority of the Minister for Immigration and Ethnic Affairs

Migration Act 1958

Migration Regulations (Amendment)

Section 504 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, subsection 31(1) of the Act provides that the regulations are to prescribe classes of visas, and subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class.

The purpose of the Regulations is to:

•       expand the circumstances in which a further Bridging C visa may be granted

-       the first grant of a bridging C visa will automatically have a condition prohibiting work attached to it. A bridging C visa holder, who wants permission to work must apply for a further bridging C visa without the 'no work' condition, and demonstrate a 'compelling need to work'. This amendment will mean that where such an applicant fails to demonstrate the 'compelling need to work', the decision maker may nonetheless grant the further bridging visa, with the 'no work' condition again attached;

•       introduce a concession in relation to certain holders and former holders of a Subclass 410 visa, a Class 410 (retirement) visa or entry permit granted under the Migration (1993) Regulations and a retirement (code number 410) visa or entry permit granted under the Migration (1989) Regulations

-       the concession allows applicants who are unable to satisfy the relevant health and/or financial criteria to satisfy relaxed criteria and be granted a visa for 2 years. This will ensure that applicants will be considered against the same relaxed criteria whether the application was made under the Migration (1989) Regulations, the Migration (1993) Regulations or the Migration Regulations; and

•       make a number of clarifying and technical amendments which do not affect the substantive operation of the Migration Regulations.

The Regulations commence on 3 July 1995.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for these Regulations to commence on 3 July 1995.

Regulation 2 - Amendment

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

Regulation 3 - Schedule 2, Part 030 (Bridging Visa C)

Subregulation 3.1 makes a minor and technical amendment to subclause 030.212(1) as a consequence of the insertion of subclause 030.212(2A) by subregulation 3.2 of these Regulations.

Subregulation 3.2 inserts new subclause 030.212(2A) into the Migration Regulations. This amendment expands the situations in which a Bridging C (Class WC) visa may be granted by enabling the grant of a further Bridging C (Class WC) visa in the circumstances specified.

Subregulation 3.3 omits subclause 030.212(4). Subclause 030.212(4) is unnecessary given the insertion of subclause 030.212(2A).

Subregulation 3.4 omits clause 030.513 of the Migration Regulations. This amendment is made as a consequence of the omission of subclause 030.212(4) of the Migration Regulations by these Regulations.

Regulation 4 - Schedule 2, Part 410 (Retirement)

Subregulation 4.1 omits Part 410 and substitutes a new Part 410 into the Migration Regulations as set out in the Schedule to these Regulations.

Regulation 5 - Schedule 2. Part 826 (Interdependency)

Subregulations 5.1 and 5.2 amend subclause 826.221(2) and paragraph 826.221(3)(a) respectively of the Migration Regulations by omitting reference to clause 826.211(2) and substituting reference to subclause 826.212(2). Subregulation 5.3 amends subparagraph 826.312(a)(i) by omitting reference to subclause 826.211(4) and substituting subclause 826.212(3). These amendments are made as a result of cross referencing errors in Statutory Rules 1995 No.117.

Regulation 6 - Transitional - applicants for Subclass 410 (Retirement) visas

Regulation 6 provides a concession for applicants for a Retirement (Temporary) (Class TQ) visa if the application was made on or after 1 September 1994 and either no decision had been made on the application before 3 July 1995 or the application had not been finally determined on 3 July 1995.

The purpose of regulation 6 is to enable applicants to whom this regulation applies to satisfy either the criteria set out in Part 410 of Schedule 2 of the Migration Regulations as in force at the time of the application or the criteria applicable to a rollover applicant (if he or she is a rollover applicant or the spouse of a rollover applicant) contained in Part 410 of Schedule 2 to the Migration Regulations as in force on and after 3 July 1995.

A person who satisfies the criteria set out in Part 410 of Schedule 2 of the Migration Regulations as in force at the time of the application is to be granted a temporary visa permitting the person to travel to, enter and remain in Australia until a date specified by the Minister. A person who satisfies the criteria applicable to a rollover applicant contained in Part 410 of Schedule 2 to the Migration Regulations as in force on and after 3 July 1995 is to be granted a temporary visa permitting the person to travel to, enter and remain in Australia for a period of 2 years from the date of grant. A definition of a rollover applicant is inserted in new Part 410 of the Migration Regulations by these Regulations.

SCHEDULE

NEW PART 410 TO BE SUBSTITUTED FOR PART 410 IN SCHEDULE 2 OF THE MIGRATION REGULATIONS

SUBCLASS 410 - RETIREMENT

New Part 410 inserts the provisions of the omitted Part 410 of the Migration Regulations for a person who is not a rollover applicant. In relation to a person who is a rollover applicant, new Part 410 introduces the following changes:

•       the applicant, or the applicant and the applicant's spouse, do not need to satisfy criteria relating to the level of their combined financial resources or public interest criteria 4005 and 4010; and

•       a visa granted to a rollover applicant or the spouse of a rollover applicant will have effect for 2 years from the date of grant.

The term "rollover applicant" is set out in clause 410.111 of new Part 410 as:

•       an applicant (whether or not in Australia) who holds a Subclass 410 visa or a Transitional (Temporary) (Class UA) visa that he or she is taken to hold on the basis of having held a Class 410 (retirement) visa or entry permit under the Migration (1993) Regulations or retirement (code number 410) visa or entry permit under the Migration (1989) Regulations; or

•       an applicant who is in Australia and is not the holder of a substantive visa if the last substantive visa held by him or her was a Class 410 (retirement) visa or entry permit under the Migration (1993) Regulations or retirement (code number 410) visa or entry permit under the Migration (1989) Regulations.

New Part 410 also omits conditions 8106 and 8107. These conditions are no longer considered necessary.