Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 1998 (NO. 7) 1998 NO. 284

STATUTORY RULES 1998 NO. 284

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

Migration Act 1958

Migration Amendment Regulations 1998 (No. 7)

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(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class.

The purpose of the Regulations is to amend the Migration Regulations with respect to children adopted overseas or seeking entry to Australia for adoption onshore.

In particular, the Regulations will:

- provide for the grant of permanent visas to children adopted overseas, or to be adopted in Australia, under adoptions to which the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption applies or which are recognised under the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations (regulations 5, 6, and 7);

- ensure that safeguards to protect the interests of children adopted overseas or being brought to Australia for adoption are consistent across all relevant visa subclasses (regulations 6 and 7);

- make technical amendments (regulation 4).

Details of the Regulations are set out in the Attachment.

The regulations will commence on 1 September 1998.

ATTACHMENT

Regulation 1 - Name of regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 1998 (No. 7).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 1 September 1998.

Regulation 3 - Amendment

This regulation provides that the Migration Regulations ("the Regulations") are amended as set out in these Regulations.

Regulation 4 - Regulation 1.03 (Interpretation)

This regulation inserts certain definitions into regulation 1.03 of the Regulations, as outlined below.

"adoption compliance certificate" has the same meaning as in the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 and the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

"Adoption Convention" means the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

"Adoption Convention country" means a country that is a Convention country under the

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

"bilateral adoption arrangement" means a bilateral arrangement allowing for the recognition of intercountry adoptions under the Family Law (Bilateral Arrangements Intercountry Adoption) Regulations 1998.

"competent authority" means a Central Authority or State Central Authority under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 or a competent authority under the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 or the person, body or office in an overseas country responsible for approving the adoption of children.

Regulation 5 - Schedule 2. Part 102 (Adoption)

Subregulation 5.1 makes a consequential amendment to the definition of "adoptive parent".

Subregulation 5.2 expands the definition of "prospective adoptive parent" to include Australian citizens, Australian permanent residents or eligible New Zealand citizens seeking to adopt children under the Adoption Convention or a bilateral adoption arrangement.

Subregulation 5.3 amends subclause 102.211 (1) to add references to new subclauses 102.211(4) and (5).

Subregulation 5.4 amends subparagraph 102.211(2)(b)(i) to reflect the fact that New Zealand citizens who are overseas cannot be "eligible New Zealand citizens" as they cannot, while overseas, be the holders of special category visas.

Subregulations 5.5, 5.6 and 5.7 make consequential amendments to paragraphs 102.211(2)(e), 102.211(3)(d) and 102.211(3)(e) respectively to replace references to relevant authorities and child welfare authorities with references to competent authorities.

Subregulation 5.8 inserts new subclauses 102.211(4) and (5). Subclause (4) applies to children allocated to approved parents for an adoption to which the Adoption Convention or bilateral adoption arrangements will apply. Subclause (5) applies to children adopted under the Convention in an overseas country while the adoptive parents were residing in a third country. It is a requirement in both subclauses that the child is aged under 18 and the adoptive parents or prospective adoptive parents are Australian citizens, Australian permanent residents or New Zealand citizens who are, or who intend to be, usually resident in Australia as the holders of special category visas.

Subregulation 5.9 omits clause 102.212 and substitutes new clause 102.212 to reflect the fact that a New Zealand citizen who has adopted, or is adopting, a child from overseas may be overseas or in Australia at the time of the visa application.

Subregulation 5.10 inserts new clause 102.228. This is a new criterion to be met at time of decision by children adopted overseas under the Adoption Convention or a bilateral adoption arrangement and by children who are to be adopted in Australia under the Convention. In the case of children adopted overseas, subclause 102.228(1) requires the production of an adoption compliance certificate as evidence that the adoption has been completed in accordance with the requirements of the Convention or a bilateral adoption arrangement. For children to be adopted in Australia, subclause 102.228(2) requires the Minister to be satisfied that a competent overseas authority has given permission for the child to leave for Australia in the care of the prospective adoptive parent.

Regulation 6 - Schedule 2. Part 152 (Family of New Zealand Citizen)

Subregulation 6.1 inserts a definition of "family head" at new clause 152.111.

Subregulation 6.2 makes a technical amendment to subparagraph 152.211 (b)(ii).

Subregulation 6.3 inserts new clause 152.212. Subclause 152.212(1) requires any applicant for a Subclass 152 visa who is the adopted child of the family head or of the family head's spouse or of both of them to have been aged under 18 at the time of adoption and to meet subclause (2), (3), (4) or (5).

Subclauses 152.212(2), (3), (4) and (5) provide certain safeguards to protect the interests of applicants who are the adopted children of New Zealand citizens or of the spouses of New Zealand citizens. The safeguards mirror those already existing in Subclass 102 (Adoption) and to be added to Subclass 802 (Child) (see regulation 7 below).

Subclause 152.212(2) is met by an applicant who is adopted in accordance with the Adoption Convention and an adoption compliance certificate is in force.

Paragraph 152.212(3)(a) is met if the applicant was adopted before the family head became a New Zealand citizen. Paragraph 152.212(3)(b) is met if the applicant was adopted by the spouse of the family head before that person became the spouse of the family head.

Subclause 152.212(4) applies where the family head was usually resident in Australia when the adoption took place, and had the approval of the competent Australian authorities to adopt the child.

Subclause 152.212(5) applies where the child was adopted overseas after the adoptive parent had been genuinely residing overseas for a period of at least 12 months, unless the Minister is satisfied that compelling or compassionate circumstances exist such that the 12 month period should not apply. In addition, full and permanent parental rights must have been lawfully acquired in respect of the child, and a competent authority in the overseas country must have approved the departure of the child to Australia.

Subregulation 6.4 makes a technical amendment to clause 152.222.

Regulation 7 - Schedule 2. Part 802 (Child)

Subregulation 7.1 inserts new clause 802.213. This clause provides certain safeguards, mirroring those existing in Subclass 102 (Adoption) and to be added to Subclass 152 (Family of New Zealand Citizen), to protect the interests of children applying onshore as the adopted children of Australian citizens, Australian permanent residents or eligible New Zealand citizens. Such children must be aged under 18 at time of adoption, and must meet subclause 802.213(2), (3), (4) or (5).

Subclause 802.213(2) is met if the child was adopted in accordance with the Adoption Convention and an adoption compliance certificate is in force.

Subclause 802.213(3) is met if the child was adopted before the nominating parent became an Australian citizen, Australian permanent resident, or New Zealand citizen.

Subclause 802.213(4) applies if the parent was approved to adopt the child-by the competent Australian authority before the adoption took place.

Subclause 802.213(5) applies where the child was adopted overseas while the adoptive parent was genuinely residing overseas for a period of at least 12 months, unless the Minister is satisfied that compelling or compassionate circumstances exist such that the 12 month period should not apply. In addition, full and permanent parental rights must have been lawfully acquired in respect of the child, and a competent authority in the overseas country must have approved the departure of the child to Australia.