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IMMIGRATION (EDUCATION) CHARGE REGULATIONS (AMENDMENT) 1996 NO. 213
EXPLANATORY STATEMENTSTATUTORY RULES 1996 No. 213
Immigration (Education) Charge Act 1992
Immigration (Education) Charge Regulations (Amendment)
Section 10 of the Immigration (Education) Charge Act 1992 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Regulations is to increase English Education Charge for all affected visa applicants to $4,080 where the application was made before 1 July 1995, and to $4,405 where the application was made on or after 1 July 1995. The regulations also remove certain exemptions from the English Education Charge for visa applicants making application in Australia.
Payment of the English Education Charge obliges the Commonwealth to provide, or arrange for provision of, up to 510 hours of tuition in an approved English course. The amount of 510 hours tuition is set out at section 4C of the Immigration (Education) Act 1971 and is based on an estimate of the tuition needed for a non-English speaker to acquire functional English.
In general terms the group of people liable to pay the English Education Charge is determined by a number of factors. These include that:
* each person is an applicant for a permanent visa;
* the permanent visa applied for is not one which is exempt (examples of exempt visas include those based on refugee or humanitarian considerations and those based on close family relationships with residents of Australia);
* criteria to be satisfied for grant of the visa appear to be met;
* each person is at least 18 years of age; and
* each person does not have functional English.
The English Education Charge is a separate requirement from the criteria prescribed in the Migration Regulations for grant of a permanent visa. However, pursuant to subsection 65(1) of the Migration Act 1958 if a permanent visa applicant is determined to be liable, the English Education Charge must be paid before the visa can be granted.
Although the amendments made by the Regulations extend to visa applications which are already in existence they are not retrospective in effect. There are two reasons for this:
* there is no liability to pay the English Education Charge until the applicant is served with a notice under subsection 64(3) of the Migration Act 1958; and
* the Regulations do not extend to applications where such a notice has already been served.
Because the Regulations do not extend to applications where such a notice has already been served they do not affect any applicant's rights or liabilities in a retrospective manner. The Regulations are prospective in operation as the new levels of English Education Charge will only apply to notices served on or after the commencement date of 1 October 1996.
The Regulations therefore do not contravene subsection 48(2) of the Acts Interpretation Act 1901.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
The Regulations commence on 1 October 1996.
Regulation 2 - Amendment
The Immigration (Education) Charge Regulations are amended by these Regulations.
Regulation 3 - Regulation 5 (Exempt visas)
Regulation 5 fists the visas for which an applicant is exempt from the English Education Charge.
Subregulations 3.1 and 3.3 omit the Business Skills (Residence) (Class BH), Subclass 805 (Skilled), Subclass 83 2 (Close Ties) and Subclass 833 (Certain Unlawful Non-citizens) visas from the list. Applicants for these visas will no longer be exempt from the requirement to pay the English Education Charge.
Subregulation 3.2 corrects a minor citation error.
Subregulation 3.4 omits the Class 805 (skilled occupation) and the Class 818 (highly qualified on-shore (permanent)) visas from the fist. Applicants for these visas will no longer be exempt from the requirement to pay the English Education Charge.
Subregulations 3.5 to 3.10 broaden the exemptions from the English Education Charge to include religious workers and members of their family unit who are granted visas on-shore. Previously the exemption only applied to religious workers and members of their family unit who applied off-shore.
To be exempt a religious worker applying on-shore must:
* be nominated by a religious institution; and
* satisfy the primary criteria set out in Part 805 of Schedule 2 to the Migration Regulations or the criteria for grant to the person, as primary person, of a Class 805 permanent entry permit under the Migration (1993) Regulations.
Members of the religious worker's family unit are also exempted.
Regulation 4 - Regulation 6 (Prescribed amounts - section 6 of the Act)
Regulation 4 omits regulation 6 and substitutes a new regulation which provides for English Education Charge of $4,080 to apply to applications:
(a) made before 1 October 1993 for visas listed in Part 1 of the Schedule;
(b) made during the period from 1 October 1993 to 31 August 1994 (inclusive) for visas and entry permits listed in Part 2 of the Schedule; and
(c) applications made on or after 1 September 1994 but before 1 July 1995 for visas listed in Part 3 of the Schedule.
The new regulation also provides that English Education Charge of $4,405 will apply to applications made on or after 1 July 1995 for visas listed in Part 3 of the Schedule.
The concessional rates previously applying to certain applicants (primarily those who apply as secondary persons) no longer apply.
Regulation 5 - Schedule (Amounts of English Education Charge)
This regulation omits the Schedule and substitutes a new Schedule - Classes of Applicants Liable to Pay Charge. The requirement to set out classes of applicant is in subsection 6(1) of the Act.
Part 1 of the Schedule fists visas and entry permits applied for before 1 October 1993. The classes of applicant listed are identical to that in Part 1 of the omitted Schedule.
Part 2 of the Schedule lists visas and entry permits applied for during the period from 1 October 1993 to 31 August 1994 (inclusive). The same classes of applicant are listed as in Part 2 of the omitted Schedule with the addition of applicants for Class 805 (skilled occupation) and Class 818 (highly qualified on-shore (permanent)) entry permits, which were previously exempt classes until the amendment made by subregulation 3.4 of these Regulations.
Part 3 of the Schedule lists visas applied for on or after 1 September 1994. The same classes of applicant are listed as in Parts 3, 4 and 5 of the omitted Schedule with the addition of Business Skills (Residence)(Class BH), Change in Circumstance (Residence) (Class AG), Family Residence (Class AO) and General Residence (Class AS). These are now included because Business Skills (Residence)(Class BH), Subclass 805 (Skilled), Subclass 832 (Close Ties) and Subclass 833 (Certain Unlawful Non-citizens) were previously exempt visas until the amendments made by subregulations 3.1 and 3.3 of these Regulations.