Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 6) 2001 NO. 206

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 206

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

Migration Act 1958

Migration Amendment Regulations 2001 (No. 6)

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 are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Additionally, regulations may be made pursuant to the following powers:

-       subsection 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way;

-       paragraph 116(1)(g) of the Act provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder;

-        subsection 501G(3) of the Act provides that a notice under subsection 501G(1) of

the Act to refuse to grant or to cancel a visa must be given in the prescribed manner;

-       paragraph 504(1)(e) of the Act provides that the Governor-General may make regulations making provision for and in relation to the giving of documents to, the lodging of documents with, or the service of documents on, the Minister, the Secretary, or any other person or body for the purposes of the Act;

-       subsection 504(3) of the Act provides that regulations made under paragraph 504(1)(e) include regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of the Act and the regulations to have been received by the person at a specified or ascertainable time.

The purpose of the proposed Regulations is to amend the provisions of the Migration Regulations 1994 relating to how the Minister, the Migration Review Tribunal, and the Refugee Tribunal, may give documents to a person. The proposed Regulations also insert a new ground for cancelling a visa into the Regulations. The new ground for cancellation applies when a visa is granted pursuant to the operation of a computer program, and the computer program is not functioning correctly.

The proposed Regulations will

-       give effect to amendments made to the Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 dealing with the giving of documents to a person by the Migration Review Tribunal, the Refugee Review Tribunal and the Minister;

-       enable the Minister to notify a visa applicant of a decision to grant or refuse to grant a visa by methods set out in the Act; and

-       provide a new ground for the cancellation of a visa where a visa is granted as a result of a computer program not functioning correctly.

Details of the proposed Regulations are set out in the Attachment.

The proposed Regulations will commence on the commencement of Schedule 2 to the

Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001. That Schedule will commence on 10 August 2001.

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 6).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on the commencement of Schedule 2 to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 ("the Electronic Transactions and Methods of Notification Act").

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that the Migration Regulations 1994 are amended as set out in Schedule 1 to these Regulations.

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by items [1] to [4] and [13] to [28] of Schedule 1 apply to an application for a visa made but not finally determined (within the meaning of subsection 5(9) of the Act) before 10 August 2001, or to an application for a visa made on or after 10 August 2001.

Subregulation 4(2) provides that the amendments made by items [5] and [8] to [12] of Schedule 1 apply in relation to any visa including a visa that has been cancelled.

Subregulation 4(3) provides that the amendments made by items [6] and [7] of Schedule 1 apply to an application for a visa that is made on or after 10 August 2001. Items 6 and 7 provide a new ground for cancellation of a visa where a visa is granted as a result of a computer program not functioning correctly.

Subregulation 4(4) provides that despite the amendments made by item [29] of Schedule 1, regulations 5.02A and 5.03 of the Regulations (as they read immediately before these Regulations commence) continue to apply in relation to a notice given under either of those regulations before these Regulations commence.

Schedule 1 - Amendments

Item [1] - Subregulation 2.08D(2), note

Item [2] - Regulation 2.12D, note

Item [3] - Subregulation 2.15(4), note

These items substitute new notes after subregulations 2.08D(2) and 2.15(4), and regulation 2.12D advising that if the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

These amendments are consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Item [4] - Regulations 2.16 and 2.16A

This item substitutes regulation 2.16, and omits regulation 2.16A.

Regulation 2.16A sets out when an electronic communication given under sub-subparagraph 2.16(1)(a)(ii)(B) or paragraph 2.16(1)(ca) is taken to be received. As substituted regulation 2.16 deals with these matters, regulation 2.16A is omitted because it is no longer necessary.

Regulation 2.16

New regulation 2.16 prescribes for the purposes of section 66 and subsection 501G(3) of the Act (which deal with giving notice of decisions) how the Minister is to notify an applicant of a decision to grant or refuse to grant a visa.

The amendment is consequential on amendments made to the Act by the Electronic Transactions and Methods of Notification Act, relating to the giving and receiving of documents.

The amendment enables the Minister to notify an applicant of a decision to grant or refuse to grant a visa by a method set. out in section 494B of the Act.

New subregulation 2.16(2)(a) provides that in the case of a bridging visa granted at the same time as a substantive visa, the Minister must notify an applicant of the grant of the bridging visa by notifying the applicant of the grant of the substantive visa, or by giving the applicant evidence of the substantive visa.

The new option of enabling the Minister to notify the applicant of the grant of the bridging visa by notifying of the grant of the substantive visa, allows the Minister to notify an applicant of the grant of both the bridging visa and the substantive visa by a method set out in section 494B of the Act.

Subregulation 2.16(2)(b) provides that the Minister must notify an applicant of the grant of a visa (being a visa other than a visa referred to in paragraph 2.16(2)(a)) in one of three ways:

-       by telling the applicant orally that the visa has been granted;

-       by notifying the applicant by a method set out in section 494B of the Act; or

-       if the evidence of the visa must be given in a particular way under the Regulations, by giving the applicant evidence of the visa in that way.

When under the Regulations, no evidence of a visa grant has to be given to an applicant, old regulation 2.16 enables the Minister to notify the applicant of the decision to grant the visa by telling the applicant orally that the visa has been granted. New subparagraph 2.16(2)(b)(i) extends the option of oral notification, to the notification of the grant of any substantive visa.

Subregulation 2.16(3) provides that in the case of the notification of a decision to refuse to grant a visa, the Minister must notify an applicant by one of the methods specified in section 494B of the Act.

The methods by which the Minister may give a document to a person as set out in section 494B of the Act are as follows:

-       by handing the document to the recipient;

-       by handing the document to another person who is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and who appears to live or work there; and who appears to be at least 16 years of age;

-       by dating the document and then dispatching it within 3 working days (in the place of dispatch) of the date of the document, by pre-paid post or other pre-paid means, to the address for service provided to the Minister by the recipient for the purposes of receiving documents, or to the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents;

-       by transmitting the document by fax, e-mail, or other electronic means to the last fax number, email address or other electronic address provided to the Minister by the recipient for the purposes of receiving documents.

The notes inserted after subregulation 2.16(2) and (3) advise that if the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of that method.

Old subregulation 2.16(2) dealing with the notification of a decision to grant or refuse to grant a visa to persons with combined applications is not replaced in new regulation 2.16, as the matters set out in that subregulation are addressed in subsection 52(3C) of the Act.

Item [5] - Subregulation 2.42(2), note

This item substitutes the note after subregulation 2.42(2) with two new notes.

The amendment is consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Note 1 advises that regulation 2.55 applies to the giving of a document relating to the proposed cancellation, cancellation, or the revocation of the cancellation, of a visa under the Act.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [6] - Paragraph 2.43(1)(m)

This item makes a technical amendment to paragraph 2.43(1)(m) to enable new paragraph 2.43(1)(n) inserted by these Regulations to properly follow paragraph 2.43(1)(m).

Item [7] - After paragraph 2.43(l.)(m)

This item inserts new paragraph 2.43(1)(n) into the Regulations creating, for the purpose of paragraph 116(1)(g) of the Act, a new prescribed ground for cancelling a visa.

The purpose of the amendment is to enable the Minister to cancel a visa granted as a result of the operation of a computer program under the Minister's control, if the grant is the result of the computer program not functioning correctly.

Paragraph 271 (1)(l) of the Act provides that a certificate signed by an officer stating whether a computer program was functioning correctly at a specified time or during a specified period, and in relation to specified outcomes of the operation of the program, is prima facie evidence of the matters stated in the certificate.

New subparagraph 2.43(1)(n) provides, for the purpose of paragraph 116(1)(g) of the Act, that a certificate in force under paragraph 271(1)(1) of the Act specifying

-       that the visa was granted at the time, or during the period, specified in the certificate; and

-       the grant of the visa is an outcome, specified in the certificate, of the operation of a computer program under an arrangement made under subsection 495A(1) of the Act,

is a prescribed ground for the cancellation of the visa.

Item [8] - Regulation 2.44, no

Item [9] - Regulation 2.45, note

Item [10] - Regulation 2.47, note

Item [11] - Regulation 2.49, note

These items substitute the notes after regulations 2.44, 2.45, 2.47 and 2.49 with two new notes.

These amendments are consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Note 1 advises that regulation 2.55 applies to the giving of a document relating to the proposed cancellation, cancellation, or the revocation of the cancellation, of a visa under the Act.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [12] - Regulation 2.54

This item substitutes regulation 2.54, and inserts new Division 2.10 into Part 2 of the Regulations. Division 2.10 is entitled 'Documents relating to cancellation of visas' and is constituted by substituted regulation 2.54 and new regulation 2.55.

Regulation 2.54 - Definition for Division 2.10

Substituted regulation 2.54 provides that for the purpose of Division 2.10, a document includes a letter, and an invitation, notice, notification, statement or summons, if it is in writing.

Prior to this amendment, regulation 2.54 applied to the manner of giving notice to a person under subsection 501G(1), to refuse to grant a visa to a person, or to cancel a visa that had been granted to a person.

Notification of a decision to refuse to grant a decision is now dealt with by regulation 2.16 as amended by these Regulations. Notification of a decision to cancel a visa that had been granted to a person is now dealt with by new regulation 2.55 as inserted by these Regulations.

Regulation 2.55 - Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

Subregulation 2.5 5 (1) provides that the regulation applies to:

-       the giving of a document to the holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act;

-       the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and

-       the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

Regulation 2.55 absorbs that part of old regulation 2.54 applying to the manner of giving notice of a decision under subsection 501G(1) of the Act to cancel a visa.

It also gives effect to the matters formerly contained in regulation 5.02A (omitted by these Regulations) applying to the giving of a document to the holder or former holder of a visa relating to the proposed cancellation of a visa under the Act.

Finally, it sets out how a document relating to the revocation of the cancellation of a visa under the Act is to be notified to a visa holder or former visa holder.

Subregulation 2.55(2) provides that regulation 2.55 does not apply in relation to a notice to which section 137J of the Act relates, or in relation to a person in immigration detention.

The purpose of the amendment is to clarify that a notice referred to in section 137J of the Act, being a notice sent under the Education Services for Overseas Students Act 2000, is not covered by regulation 2.55. A document given to a person in immigration detention is given under regulation 5.02.

Subregulation 2.55(3) provides that the Minister must give a document mentioned in paragraphs 2.55(1)(a) or (c), being a document relating to the proposed cancellation or cancellation of a visa under the Act, or the revocation of the cancellation of a visa under the Act, in one of the following ways:

-       by handing it to the person personally;

-       by handing it to another person who is at the last residential or business address known to the Minister, and who appears to live or work there, and who appears to be at least 16 years of age;

-       by dating it, and then dispatching it within 3 working days (in the place of dispatch) of the date of the document, by pre-paid post or other pre-paid means to the person's last residential, business, or post box address known to the Minister;

-       by transmitting the document by fax, e-mail, or other electronic means to the last fax number, e-mail address or other electronic address known to the Minister.

Subregulation 2.55(4) maintains the distinction set out in old regulation 2.54 between a person who held a visa for less than 1 year, and a person who held a visa for at least 1 year at the time the document is to be given. This distinction is preserved in relation to a document mentioned in paragraph 2.55(1)(b), being a document to be given under subsection 501G(3) of the Act.

Paragraph 2.55(4)(a) provides that if the person has held the visa for less than 1 year when the document is to be given, the Minister to give the document by a method set out in subregulation 2.55(3).

Paragraph 2.55(4)(b) provides that if the person has held the visa for at least 1 year when the document is to be given, the Department of Immigration and Multicultural Affairs must try to find the person, and the Minister must give the document in one of the ways set out in subregulation 2.55(3).

Subregulations 2.55(5) to 2.55(8) set out deeming rules in relation to when a person is taken to have received a document given to that person under subregulations 2.55(3) or (4). The deemed receipt rules are based on those contained in subsections 494C(2) to (5) of the Act, and replace the deeming function previously performed by regulation 5. which is omitted by these Regulations.

Item [13] - Subregulation 4.17(6), notes

Item [14] - Subregulation 4.18(5), notes

Item [15] - Subregulation 4.18A(6), notes

Item [16] - Subregulation 4.18B(5), notes

These items substitute the notes after subregulations 4.17(6), 4.18(5), 4.18A(6), and 4.18B(5) with two new notes.

These amendments are consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Note 1 advises that if the Migration Review Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [17] - Regulation 4.19

This item substitutes regulation 4.19 setting out how a summons to appear before, or to produce documents to, the Migration Review Tribunal under subsection 363(3) of the Act is to be served on a person.

New subregulation 4.19(3) provides that if a person has notified the Migration Review

Tribunal of an address for service under regulation 4.39, the summons must be served by one of the methods specified in section 379A of the Act.

The methods set out in section 379A of the Act are as follows:

-       by handing the document to the recipient;

-       by handing the document to another person who is at the last residential or business address provided to the Migration Review Tribunal by the recipient in connection with the review, and who appears to live or work there, and who appears to be at least 16 years of age;

-       by dating the document and then dispatching it within 3 working days (in the place of dispatch) of the date of the document, by pre-paid post or other pre-paid means, to the last address for service. provided to the Migration Review Tribunal by the recipient in connection with the review, or the last residential or business address provided to the Migration Review Tribunal by the recipient in connection with the review;

-       by transmitting the document by fax, e-mail, or other electronic means to the last fax number, e-mail address or other electronic address provided to the Migration Review Tribunal by the recipient in connection with the review.

Note 1 after subregulation 4.19(3) advises that if the Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.

Note 2 after subregulation 4.19(3) advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Subregulation 4.19(4) provides that if a person has not notified the Migration Review Tribunal of an address for service under regulation 4.39, the summons must be served in one of the following ways:

-       by handing it to the person personally;

-       by handing it to another person who is at the person's last residential or business address known to the Migration Review Tribunal, and who appears to live or work there, and who appears to be at least 16 years of age;

-       by dating it and then dispatching it within 3 working days (in the place of dispatch) of the date of the document, by prepaid post or other prepaid means, to the person's last residential or business address known to the Migration Review Tribunal.

Item [18] - Regulation 4.2 1, notes

Item [19] - Regulation 4.27A, note

These items substitute the notes after regulations 4.21 and 4.27A with two new notes.

These amendments are consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Note 1 advises that if the Migration Review Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [20] - Subregulation 4.31(2), note

This item substitutes the note after subregulation 4.31(2) with a new note.

The amendment is consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

The note advises that if the Minister gives a person a document by a method of specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

Item [21] - Subregulation 4.31B(2)

This item substitutes subregulation 4.31B(2) providing that a fee payable under subregulation 4.31B(1) is payable within 7 days of the time when the notice of a decision of the Refugee Review Tribunal is taken to be received by the applicant under section 441C of the Act.

Section 441C of the Act sets out the time of receipt rules for a document given by the Refugee Review Tribunal by a method set out in section 441A of the Act.

Previously the subregulation provided that a fee payable under subregulation 4.31B(1) is payable within 7 days of the time when the notice of a decision of the Refugee Review Tribunal is taken to be received by the applicant in accordance with regulation 5.03.

The amendment reflects the omission of regulation 5.03, and the amendment of regulation 4.40, by these Regulations.

The item also inserts a note advising readers that under regulation 4.40, a notice of a decision of the Refugee Review Tribunal must be given by one of the methods specified in section 441 A of the Act.

Item [22] - Subregulation 4.35(6), notes

Item [23] - Subregulation 4.35A(3), notes

Item [24] - Subregulation 4.35B(4), notes

Item [25] - Subregulation 4.35C(2), notes

These items substitute the notes after subregulations 4.35(6), 4.35A(3), 4.35B(4) and 4.35C(2) with two new notes.

These amendments are consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

Note 1 advises that if the Refugee Review Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [27] - Regulation 4.35E, note

This item substitutes the note after regulation 4.35E.

The amendment is consequential to amendments made by the Electronic Transactions and Methods of Notification Act, and these Regulations.

The new note advises that if the Refugee Review Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Item [28] - Regulations 4.40 and 4.41

This item substitutes regulation 4.40, and omits regulation 4.41.

Regulation 4.41 sets out default arrangements applicable to the service of documents on a person for the purposes of a review by the Migration Review Tribunal or the Refugee Review Tribunal.

As amendments made by these Regulations are intended to cover the field in relation to the service of documents on a person for the review purposes of the above Tribunals, regulation 4.41 is no longer necessary.

Regulation 4.40 - Notice of decision of Tribunal

New subregulation 4.40(1) provides that a notice or statement given to an applicant in relation to a decision of the Migration Review Tribunal must be given by one of the methods specified in section 379A of the Act.

New subregulation 4.40(2) provides that a notice or statement given to an applicant in relation to a decision of the Refugee Review Tribunal must be given by one of the methods specified in section 441A of the Act.

The methods by which the Migration Review Tribunal may give documents to a person under section 379A of the Act are set out in item 17 above. The methods by which the Refugee Review Tribunal may give documents to a person under section 441 A of the Act are identical to those contained in section 379A.

New notes are also inserted after subregulations 4.40(1) and 4.40(2).

Note 1 after subregulation 4.40(1) advises that if the Migration Review Tribunal gives a person a document by a method of specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act. Note 1 after subregulation 4.40(2) advises that if the Refugee Review Tribunal gives a person a document by a method of specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act.

Note 2 advises that a document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Item [29] - Regulation 5.02A and 5.03

This item omits regulations 5.02A and 5.03.

Regulation 5.02A is no longer necessary because the manner of serving documents in respect of the proposed cancellation and cancellation of a visa under the Act, to the holder and former holder of a visa respectively, are now located in regulation 2.55 as inserted by these Regulations.

Regulation 5.03 is no longer necessary because the time of receipt rules for a document sent by the Minister, the Migration Review Tribunal or the Refugee Review Tribunal by a method set out in section 494B, 379A or 441A of the Act respectively, are set out in sections 494C, 379C and 441C respectively.

The time of receipt rules for a document sent by the Minister relating to the proposed cancellation, cancellation, or revocation of the cancellation of a visa set out in new regulation 2.55.


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