MIGRATION AMENDMENT REGULATIONS 2001 (NO. 4) 2001 NO. 142

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 4) 2001 NO. 142

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 142

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

Migration Act 1958

Migration Amendment Regulations 2001 (No. 4)

Subsection 504(1) of the Migration Act 1958 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act arc required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Details of additional regulation-making powers under the Act are in Attachment A.

The purpose of the Regulations is to effect changes to the Migration Regulations 1994, mainly in relation to visa eligibility. Specifically, the changes:

- enable certain temporary safe haven visa holders and former holders to be eligible for the grant of a Subclass 866 (Protection) visa;

- ensure that members of a family unit are eligible only for the same subclass of protection visa as their family head;

- prescribe a new direction which the Refugee Review Tribunal may make when remitting matters for reconsideration;

- make minor corrections to the amendments relating to New Zealand citizens and their family members made on 27 February 2001;

- require applications for Skilled - New Zealand Citizen visas to be made at a particular address;

- remove the bar preventing holders and former holders of Special Category (Temporary) visas from obtaining certain onshore permanent visa subclasses;

- ensure that condition 8202 (which imposes enrolment, attendance and academic result requirements on certain student visa holders) will be imposed upon student visas granted on or after 1 July 2001;

- amend condition 8533 (which requires student visa holders to notify their education provider of a change in the holder's residential address), to add a requirement that the holder notify the current education provider if the holder changes education provider; and

- prescribe a period relating to the time in which a regional sponsored employment visa holder must have commenced employment pursuant to paragraph 137Q(2)(a) of the Act. The proposed amendment relates to the cancellation of a regional sponsored employment visa. In addition, two subclasses are prescribed as 'regional sponsored employment visas', pursuant to subsection 137Q(3) of the Act. The amendments allow the new cancellation provisions in the Act to operate.

Details of the Regulations are set out in Attachment B.

The Regulations commence on 1 July 2001.

ATTACHMENT A

Details of other relevant regulation-making powers are as follows:

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

- subsection 41 (1) of the Act provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

- subsection 46(1) of the Act provides that the regulations may prescribe criteria and requirements which must be satisfied for a visa application to be a valid application;

- subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

- subsection 46(4) of the Act provides that the regulations may prescribe where an application for a visa of a specified class must be made;

- paragraph 137Q(1)(a) of the Act provides that the regulations may prescribe the period in which a person who holds a regional sponsored employment visa must commence the employment referred to in the relevant employer nomination. If this does not occur, the Minister may cancel the visa, subject to paragraph 137Q(1)(b);

- subsection 137Q(3) of the Act provides that the regulations may prescribe the types of visas that are regional sponsored employment visas; and

- paragraph 415(2)(c) of the Act provides that where a decision of the Refugee Review Tribunal relates to a prescribed matter, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations.

ATTACHMENT B

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 4).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 1 July 2001.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994.

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by items [103], [2855.1], [2855.2], [2855.3], [2856.1], [2856.2], [2856.3], [2857.1], [2857.2], [2857.3], [2858.1], [2858.2], [2866.1] to [2866.5] apply to an application for a visa made on or after 1 July 2001.

Subregulation 4(2) provides that the amendment made by item [433] applies to an application, for review of a decision, that is made on or after 1 July 2001.

Subregulation 4(3) provides that the amendments made by items [2461], [8202] and [8533] apply to an application for a visa:

(a) made, but not finally determined, before 1 July 2001; or

(b) made on or after 1 July 2001,

Schedule 1 Amendments

Item [103] - Regulation 1.03, definition of eligible New Zealand citizen

This item amends the definition of "eligible New Zealand citizen".

An eligible New Zealand citizen has the same rights as Australian citizens and permanent residents to sponsor family members for certain permanent visas.

The definition was amended on 27 February 2001 by Statutory Rules No. 27 of 2001, as part of a package of changes relating to New Zealand citizens. The amendment on that date restricted those persons able to meet the definition to persons coming within one of the following groups:

• New Zealand citizens in Australia immediately prior to the commencement of those changes;

• New Zealand citizens resident in Australia for 1 in the 2 years prior to that date; and

• New Zealand citizens who arrive in Australia within a specified period after that date and obtain a certificate under the Social Security Act 1991.

Item 103 corrects an error in the definition, which incorrectly stated the operative date for persons coming within the second dash point above as 27 February 2001, rather than 26 February 2001.

The item also ensures that the definition correctly reflects the policy intention that public interest criteria 4001 to 4004 and 4007 to 4009 apply to all New Zealand citizens seeking, to come within the definition of eligible New Zealand citizen. Under the current definition, these criteria apply only to persons coming within the first and second dot points.

Item [250] - After regulation 2.50

This item inserts new regulation 2.50A, entitled 'Cancellation of regional sponsored employment visas', after regulation 2.50.

Section 137Q of the Act makes provision for the Minister to cancel a regional sponsored employment visa in certain circumstances.

Subsection 137Q(3) provides that 'regional sponsored employment visa' means a visa of a kind that is included in a class of visas that has the words 'Employer nomination' in its title, and is prescribed by the regulations for the purposes of this definition.

New subregulation 2.50A(1) prescribes the two regional sponsored employment visa subclasses, pursuant to paragraph 137Q(3)(b) of the Act. Therefore, the kinds of visas referred to in subregulation 2.50A(1) are Subclass 119 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

In particular, pursuant to paragraph 137Q(1)(a) of the Act, the Minister may cancel a regional sponsored employment visa if the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations. In order to cancel the visa, however, paragraph 137Q(1)(b) of the Act must also apply.

Pursuant to paragraph 137Q(1)(a) of the Act, new subregulation 2.50A(2) prescribes the period within which a Subclass 119 (Regional Sponsored Migration Scheme) and a Subclass 857 (Regional Sponsored Migration Scheme) visa holder must have commenced the employment, mentioned in paragraph 137Q(1)(a).

The note inserted at the end of regulation 2.50A refers to the six month period within which the holder of a regional sponsored employment visa must commence the employment referred to in the employer nomination. This is essential to continued integrity of the scheme:

• to safeguard against any future misuse of the Regional Sponsored Migration Scheme: and

• to discourage persons who do not have a genuine intention of settling in rural or regional Australia.

Item [433] - After subregulation 4.33(2)

This item inserts new subregulation 4.33(3).

Regulation 4.33 prescribes matters which the Refugee Review Tribunal may remit for reconsideration. It also prescribes the types of directions or recommendations the Tribunal may make when remitting such a matter.

Subregulation 4.33(2) provides that a permissible direction is that the applicant must be taken to have satisfied the criteria for the visa that are specified in the direction.

It is a criterion for the grant of a subclass 866 visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ('the Convention'). This involves consideration of various Articles of the Convention, including Articles IF, 32 and 33(2). The review of refusal decisions made relying on any of these three provisions is reserved for the Administrative Appeals Tribunal by paragraph 500(1)(c) of the Act.

The new subregulation will allow the Refugee Review Tribunal to make a direction that the applicant satisfies those matters relevant to determining whether Australia owes protection obligations, with the exception of those matters reserved by paragraph 500(1)(c) of the Act for consideration by the Administrative Appeals Tribunal.

Item [1128D.1] - Schedule 1, after paragraph 1128D(3)(a)

This item makes it a requirement, when applying for a Skilled - New Zealand Citizen (Residence) visa, that the application be made by the applicant mailing the application to a specified post office box address. This will ensure efficiency in processing, as it is intended that all applications for this visa class will be processed at a particular Immigration office, The post office box address will be approved in writing by the Minister.

Item [1128D.2] - Schedule 1, subitem 1128D(4)

This item changes the name of the Subclass 863 visa, from Skilled - Onshore Regional-sponsored New Zealand Citizen, to Skilled - Onshore Designated Area-sponsored New Zealand Citizen. The new name better reflects the policy and purpose of the subclass.

Item [2461] - Schedule 2, clause 461.223

This item omits the references to public interest criteria 4005 and 4008 in clause 461.223 of Schedule 2.

The reference to criterion 4005, imposing health requirements, was included in error. Criterion 4007 is also listed in clause 461.223. Criterion 4007 imposes the same requirements imposed by criterion 4005, but with a waiver provision. As is it intended that the health requirement should be able to be waived in deserving cases, criterion 4005 is to be omitted and criterion 4007 will remain.

There is no criterion 4008 listed in Schedule 4 to the Regulations, and its inclusion in Subclass 461 was an error.

Item [2855.1] - Schedule 2, subparagraph 855.211(1)(a)(v)

This item removes the bar preventing holders of special category visas from being eligible for a Subclass 855 (Labour Agreement) visa.

Prior to 27 February 2001, New Zealand citizens in Australia as special category visa holders could access Australian social security benefits.

Most New Zealand citizens arriving in Australia from 27 February 2001 must obtain a permanent visa to be eligible for Australian social security or Australian citizenship. A new visa class was introduced on 27 February 2001 to enable New Zealand citizens to apply for permanent residence in Australia on the basis of their skills, in recognition of the fact that more New Zealand citizens will wish to pursue permanent residence in Australia in order to obtain social security or Australian citizenship.

Consistent with this, the bar on special category visa holders being eligible for a Subclass 855 visa is being removed.

The item amends paragraph 855.211 (1)(a) by omitting the reference in that paragraph to special category visas as one of the visas which an applicant for a Subclass 855 visa cannot hold.

Item [2855.2] - Schedule 2, sub-subparagraph 855.211(2)(b)(i)(E)

This item removes the bar preventing persons who do not hold a substantive visa, but whose last substantive visa was a special category visa, from obtaining a Subclass 855 (Labour Agreement) visa. The reason for this change is outlined above.

Item [2855.3] - Schedule 2, subparagraph 855.212(4)(a)(vii)

This item ensures that New Zealand citizens who hold special category visas (or whose last substantive visa was such a visa) can meet the criteria for the grant of a Subclass 855 (Labour Agreement) visa.

As stated above, most New Zealand citizens arriving in Australia from 27 February 2001 must obtain a permanent visa to be eligible for Australian social security benefits or citizenship. The bar on special category visa holders being eligible for a Subclass 855 visa is therefore to be lifted.

The item amends subclause 855.212(4) by adding special category visas to the list of visas, one of which the applicant must hold or have last held, to be eligible for a Subclass 855 visa.

Item [2856.1] - Schedule 2, subparagraph 856.211 (1)(a)(v)

This item removes the bar preventing holders of special category visas from being eligible for a Subclass 856 (Employer Nomination Scheme) visa.

Prior to 27 February 2001, New Zealand citizens in Australia as special category visa holders could access Australian social security benefits.

Most New Zealand citizens arriving in Australia from 27 February 2001 must obtain a permanent visa to be eligible for Australian social security. A new visa class was introduced on 27 February 2001 to enable New Zealand citizens to apply for permanent residence in Australia on the basis of their skills, in recognition of the fact that more New Zealand citizens will wish to pursue permanent residence in Australia in order to obtain social security or Australian citizenship.

Consistent with this, the bar on special category visa holders being eligible for a Subclass 856 visa is being removed,

The item amends paragraph 856.211(1)(a) by omitting the reference in that paragraph to special category visas as one of the visas which an applicant for a Subclass 856 visa cannot hold.

Item [2856.2] - Schedule 2, sub-subparagraph 856.211(2)(b)(i)(E)

This item removes the bar preventing persons who do not hold a substantive visa, but whose last substantive visa was a special category visa, from obtaining a Subclass 856 (Employer Nomination Scheme) visa. The reason for this change is outlined above.

Item [2856.3] - Schedule 2, subparagraph 856.212(4)(a)(vii)

This item ensures that New Zealand citizens who hold special category visas (or whose last substantive visa was such a visa) can meet the criteria for the grant of a Subclass 856 (Employer Nomination Scheme) visa.

The item amends subclause 856.212(4) by adding special category visas to the list of visas, one of which the applicant must hold or have last held, to be eligible for a Subclass 856 visa.

Item [2857.1] - Schedule 2, subparagraph 857.211(1)(a)(v)

This item removes the bar preventing holders of special category visas from being eligible for a Subclass 857 (Regional Sponsored Migration Scheme) visa.

Prior to 27 February 2001, New Zealand citizens in Australia as special category visa holders could access Australian social security benefits.

Most New Zealand citizens arriving in Australia from 27 February 2001 must obtain a permanent visa to be eligible for Australian social security or citizenship. A new visa class was introduced on 27 February 2001 to enable New Zealand citizens to apply for permanent residence in Australia on the basis of their skills, in recognition of the fact that more New Zealand citizens will wish to pursue permanent residence in Australia in order to obtain social security or citizenship.

Consistent with this, the bar on special category visa holders being eligible for a Subclass 857 visa is being removed.

The item amends paragraph 857.211(1)(a) by omitting the reference in that paragraph to special category visas as one of the visas which an applicant for a Subclass 857 visa cannot hold.

Item [2857.2] - Schedule 2, sub-subparagraph 857.211(2)(b)(i)(E)

This item removes the bar preventing persons who do not hold a substantive visa, but whose last substantive visa was a special category visa, from obtaining a Subclass 857 (Regional Sponsored Migration Scheme) visa. The reason for this change is outlined above.

Item [2857.3] - Schedule 2, subparagraph 857.212(4)(a)(vii)

This item ensures that New Zealand citizens who hold special category visas (or whose last substantive visa was such a visa) can meet the criteria for the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa.

The item amends subclause 857.212(4) by adding special category visas to the list of visas, one of which the applicant must hold or have last held, to be eligible for a Subclass 857 visa.

Item [2858.1] - Schedule 2, subparagraph 858.211 (1)(a)(v)

This item removes the bar preventing holders of special category visas from being eligible for a Subclass 858 (Distinguished Talent) visa.

Prior to 27 February 2001, New Zealand citizens in Australia as special category visa holders could access Australian social security benefits.

Consistent with this, the bar on special category visa holders being eligible for a Subclass 858 visa is being removed.

The item amends paragraph 858.211 (1)(a) by omitting the reference in that paragraph to special category visas as one of the visas which an applicant for a Subclass 858 visa cannot hold.

Item [2858.2] - Schedule 2, sub-subparagraph 858.211(2)(b)(i)(E)

This item removes the bar preventing persons who do not hold a substantive visa, but whose last substantive visa was a special category visa, from obtaining a Subclass 858 (Distinguished Talent) visa. The reason for this change is outlined above.

Item [2863.1] - Schedule 2, Part 863, heading

This item changes the name of Subclass 863 from Skilled - Onshore Regional-sponsored New Zealand Citizen, to Skilled - Onshore Designated Area-sponsored New Zealand Citizen.

The name change is consistent with other amendments made by these Regulations to change references to "Regional-sponsored" to "Designated Area-sponsored".

The new name better reflects the policy and purpose sought to be achieved by the relevant subclasses.

Item [2866.1] - Schedule 2, clause 866.111, before definition of Refugees Convention

This item makes a technical amendment. It moves the definition of "Fraudulent document" from subclause 866.213(4) to the interpretation provision of Part 866.

Item [2866.2] - Schedule 2, paragraph 866.211 (b)

This item makes a technical amendment to define a person referred to in paragraph 866.211 (b), for ease of reference.

Item [2866.3] - Schedule 2, clauses 866.212 and 866.213

This item substitutes new clauses 866.212 and 866.213.

Clause 866.212

Currently, all Subclass 866 applicants are required to be immigration cleared, and to either hold a Subclass 785 (Temporary Protection) visa or have been immigration cleared on genuine documents.

Under the amendments provided by this item, only persons who make specific claims under the Convention are required to be immigration cleared, and to either hold a Subclass 785 visa or have been immigration cleared on genuine documents.

Applicants who do not make specific claims under the Convention, but who simply claim to be the member of the same family unit as an applicant for a Protection visa who has made such claims, are not required to be immigration cleared, or to either hold a Subclass 785 visa or have been immigration cleared on genuine documents.

The only time of application criterion such persons must meet is a requirement that the person who made specific claims must have been immigration cleared and must hold a Subclass 785 visa or have been immigration cleared on genuine documents.

This change will ensure that members of a single family unit are all granted protection visas of the same subclass. Under the current regulations, it is possible for the family head to be granted a Subclass 866 visa, but for that person's family members to be eligible only for Subclass 785 visas. Conversely, the family head might be eligible only for a Subclass 785 visa, but for that person's family members to be eligible for Subclass 866 visas.

Under the regulations as amended by this item, family members who do not make specific claims will be eligible for the same visa subclass as the family member who makes specific claims.

New subclause 866.212(4) allows for holders, and certain former holders, of Temporary Safe Haven (Class UJ) visas, to be able to be granted a Subclass 866 (Protection) visa, despite not having entered Australia on genuine documents.

Holders, and former holders, of Class UJ visas will only be able to apply for a Protection visa if the Minister has personally exercised his power under section 91L of the Act to determine that section 91K of the Act does not apply. Section 91K prevents holders, or former holders, of Class UJ visas, from applying for another visa other than another temporary safe haven visa.

It is appropriate that where the Minister has decided to lift the section 91K bar on such persons, they should not be required to have either entered Australia on genuine documents.

Clause 866.213

New clause 866.213 applies to a person who does not make specific claims under the Convention ('person A'), but who claims to be the member of the same family unit as a Protection visa applicant who has made such claims ('person B).

Under the amendments made by this item, person A meets the time of application criteria for the grant of a Subclass 866 visa if person B has been immigration cleared, and either holds a Subclass 785 visa or was immigration cleared on genuine documents.

This will ensure that family members who do not make specific claims under the Convention are entitled to the same subclass of Protection visa as the family member who does make such claims.

Item [2866.4] - Schedule 2, paragraph 866.222(a)

This item makes a technical change to paragraph 866.222(a) to make it simpler to read.

Item [2866.5] - Schedule 2, after clause 866.229

This item inserts new clause 866.230.

The new clause applies to children born in Australia to protection visa applicants. Paragraph 2.08(1)(c) provides that the child is taken to have applied for a visa of the same class as the parent. Subregulation 2.08(2) provides that the child must satisfy time of decision criteria for the grant of the visa.

New clause 866.230 provides that the child must be a member of the same family unit as a person who hag made specific claims under the Convention ('the claimant'), and the claimant must hold a Subclass 866 (Protection) visa.

The purpose of this change is to ensure that children born in Australia to protection visa applicants obtain the same subclass of protection visa as their parents. Currently it is possible for the child to obtain a permanent Subclass 866 visa where the child's parents would be eligible only for a temporary Subclass 785 visa.

Item [8202] - Schedule 8, clause 8202

This item amends condition 8202 in Schedule 8 to the Migration Regulations 1994.

New condition 8202 substantially mirrors condition 8202 as set out in subitem 4(3) of the Migration Legislation Amendment (Overseas Students) Act 2000.

Condition 8202 was amended in item 4 in response to the Federal Court decision in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA (6 November 2000) ("the Nong Case"). The decision in Nong effectively deprived parts of condition 8202 of all utility.

Consequently, the amendment to condition 8202 was made by item 4 of the Act, rather than in Schedule 8 of the Migration Regulations 1994 ("the Regulations"), so that it could apply to all existing student visas. Subitem 4(1) provides that the item applies to the following visas:

• all student visas that are in effect on commencement of item 4; and

• all student visas granted after the commencement of item 4 but before 1 July 2001.

Item [8202] amends condition 8202 to substantially mirror subitem 4(3) so that all student visas granted after 1 July 2001 have this version of condition 8202 imposed.

New condition 8202 differs from the version in subitem 4(3) in only the following way:

• the combined effect of new subclauses 8202(1) and (4) means that a holder of a Subclass 560 visa who is an AusAID student does not have to meet the requirements of subclauses 8202(2) and (3). He or she merely has to be enrolled in a full-time course of study or training.

This amendment takes into account that an AusAID student undertaking training could not comply with paragraph 4(3)(d) of the Act.

Item [8533.1] - Schedule 8, paragraph 8533 (b)

This item amends condition 8533 in Schedule 8 to the Migration Regulations 1994.

This amendment adds the requirement that a holder must notify his or her current education provider of a change in education provider within 7 days of receiving:

• a certificate of enrolment from the new education provider. (Certificate of enrolment is defined in regulation 1.03 to mean, in summary, a paper copy of the electronic confirmation of enrolment); or

• some other form of evidence that the applicant has been enrolled by the new education provider. This is to ensure the following people are able to comply with the condition;

- AusAID, Defence and exchange students who are not doing a registered course and therefore do not receive a certificate of enrolment; and

- where a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment.

New sub-subparagraph 8533 (b)(ii)(B) allows these students to provide some other form of evidence of enrolment.