Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1998 NO. 37

STATUTORY RULES 1998 NO. 37

Issued by the Authority of the Minister for Immigration and Multicultural 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, regulations may be made pursuant to the following powers:

-       subsection 31(3) of the Act provides that the regulations may prescribe criteria for a

visa or visas of a specified class;

-       subsection 45(2) of the Act provides that the regulations may prescribe the way for

making an application for a visa of a specified class; and

-       section 48 of the Act provides that a person who does not hold a substantive visa

and who has since been refused the grant of a visa or who has had a visa cancelled

is prevented from making an application for any visa other than a prescribed visa.

A substantive visa is a visa other than a bridging visa or a criminal justice visa. A

bridging visa is granted to a person while they are in Australia and have made an

application for a substantive visa in Australia and the application for the substantive

visa is not decided. A criminal justice visa is granted to a person to enter or remain

in Australia for that person to assist the authorities in relation to the criminal justice

system.

Regulation 2.12 prescribes the classes of visas for the purposes of section 48 of the Act.

The purpose of the Regulations is to make amendments to the Migration Regulations to prevent persons who are affected by section 48 of the Act from making an application for a Sri Lankan (Temporary) (Class TT) visa or a Citizens of Former Yugoslavia (Temporary) (Class TC) visa.

On 13 June 1997 the Minister announced that holders of the Sri Lankan, Subclass 435 Visa and Citizens of former Yugoslavia, Subclass 443 Visa, who arrived before 1 November 1993 could apply for new visas. This would allow those people to maintain their lawful status until 31 July 1998 with the possibility of seeking permanent residence. Sri Lankans and citizens of the former Yugoslavia who had arrived after this cut-off date were ineligible for the grant of another visa of those subclasses. If these people were not granted another visa they would have been required to depart Australia when their temporary visas expired on 31 July 1997.

At present an applicant may make a valid application for a visa of these subclasses even though they are not able to satisfy the prescribed criteria for the grant of the visa. The making of the application in these circumstances enables a person to extend their stay in Australia while their application is finally determined. This amendment prevents certain persons from making a valid application for those visas and will prevent their continued stay in Australia.

Details of the Regulations are as follows.

Regulation 1 - Commencement

This regulation provides that these Regulations commence on 21 March 1998.

Regulation 2 - Amendment

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

Regulation 3 - Regulation 2.12 (Certain non-citizens whose applications refused in Australia (Act, s.48))

Subregulation 3.1 omits paragraph 2.12(1)(b). This will prevent persons affected by section 48 of the Act from making an application for a Citizens of Former Yugoslavia (Temporary) (Class TC) visa.

Subregulation 3.2 omits paragraph 2.12(1)(d). This will prevent persons affected by section 48 of the Act from making an application for Sri Lankan (Temporary) (Class TT) visa.

Regulation 4 - Schedule 2, Part 435 (Sri Lankan)

Subregulation 4.1 omits clause 435.211. This is a consequential amendment as persons affected by section 48 of the Act will no longer be able to make a valid application for a Sri Lankan, Subclass 435, visa.

Regulation 5 - Schedule 2, Part 443 (Citizens of former Yugoslavia)

Subregulation 5.1 omits clause 443.211. This is a consequential amendment as persons affected by section 48 of the Act will no longer be able to make a valid application for a Citizens of former Yugoslavia, Subclass 443, visa.

The Regulations commence on 21 March 1998.