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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 8) 2001 NO. 246
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 246
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act
Migration Amendment Regulations 2001 (No. 8)
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.
In addition, regulations may be made pursuant to the powers listed in Attachment A.
The purpose of the Regulations is to effect changes to the Migration Regulations 1994 (the Regulations) to restrict the grant of permanent protection visas in relation to applicants who have had certain previous visas cancelled, or who have been convicted of certain offences in Australia, and to ensure that temporary protection visa holders keep the Department of Immigration and Multicultural Affairs notified of their residential address.
Protection visas are granted to non-citizens to whom Australia has protection obligations under the Convention relating to Status of Refugees done at Geneva on 28 July 1951 (as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967). There are two kinds of protection visa: a visa allowing temporary stay (Subclass 785 (Temporary Protection)); and a visa allowing permanent stay (Subclass 866 (Protection)).
In particular, the Regulations:
• ensure that a person is not granted a permanent protection visa for four years from the date of any conviction in Australia, whether during detention or while in the community, for a criminal offence carrying a maximum penalty of imprisonment of twelve months or more;
• require the holder of a Subclass 785 (Temporary Protection) visa to notify the Department of Immigration and Multicultural Affairs of any change of address within 14 days of the change; and
• amend Part 866 of Schedule 2 to the Regulations to overcome an anomaly, so that a former Subclass 785 (Temporary Protection) visa holder whose visa was cancelled will only be eligible for the grant of another Subclass 785 (Temporary Protection) visa, and not a Subclass 866 (Protection) visa, provided that all of the criteria for grant of the Subclass 785 (Temporary Protection) visa are satisfied.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 19 September 2001.
Attachment A
Details of other relevant regulation-making powers are as follows:
- subsections 29(2) and (3) of the Act provide that the regulations may provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- subsection 40(1) of the Act provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
- 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; and
- section 48 of the Act provides for the prescribing of classes of visas, being classes of visas for which a person who does not hold a substantive visa and whose visa application has been refused, or who has had their visa cancelled, may apply.
Attachment B
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 8).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 19 September 2001.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994.
Regulation 4 - Transitional
This regulation provides that the amendments made by Schedule 1 apply in relation to an application for a visa made but not finally determined before 19 September 2001, or made on or after 19 September 2001.
Schedule 1 - Amendments
Item [1] - Schedule 2, clause 785.511
This item omits clause 785.511 and substitutes new clause 785.511.
New clause 785.511 states that a Subclass 785 (Temporary Protection) visa is a temporary visa permitting the holder to remain in, but not re-enter Australia. If the applicant makes an application for a permanent visa within the first 36 months from the grant of the Subclass 785 (Temporary Protection) visa, the Subclass 785 (Temporary Protection) visa will remain in effect until the applicant has their application for a permanent visa finally determined. If the applicant does not apply for a permanent visa within the first 36 months, the Subclass 785 (Temporary Protection) visa is in force for 36 months from the date of grant.
Therefore, the effect of this change is that in circumstances in which the application for a permanent protection visa has been made before the temporary protection visa will cease to be in effect, the temporary protection visa will extend until the permanent protection visa is finally determined (even if it is later than 36 months).
Hence, the new clause permits the holder to remain in, but not re-enter Australia until:
• if the holder has not applied for a permanent visa, the end of 36 months from the date of grant of the visa; or
• if the holder has applied for a permanent visa, the day on which the application by the holder for that visa is finally determined.
Item [2] - Schedule 2, after clause 785.611.
This item inserts new clause 785.612 after clause 785.611. New clause 785.612 imposes a change of address condition on holders of a Subclass 785 (Temporary Protection) visa. The clause requires Subclass 785 (Temporary Protection) visa holders to inform the Department of Immigration and Multicultural Affairs of any change of residential address within 14 days after the change.
This clause is intended to:
• enhance the Department's ability to investigate any allegation of fraud made after visa grant;
• facilitate the assessment of temporary protection visa holders at the expiry of their visa; and
• assist in the location and removal of former temporary protection visa holders where there are no continuing protection needs.
The penalty for breach of the condition is discretionary and would involve possible cancellation of the visa. Cancellation of protection visas occurs in accordance with Departmental guidelines, which require assessment of protection obligations owed to the visa holder. A person's protection visa will not be cancelled if they are still owed protection obligations.
Item [3] - Schedule 2, subclause 866.212(2)
This item omits subclause 866.212(2) and substitutes new subclause 866.212(2).
Substituted subclause 866.212(2) sets out the requirements that an applicant must satisfy to meet this subclause. The applicant will satisfy the subclause if he or she:
• has been granted a Subclass 785 (Temporary Protection) visa, whether or not the applicant still holds the visa; and
• has not had his or her last Subclass 785 (Temporary Protection) visa cancelled; and
• has not have left Australia since that visa was granted.
Under the omitted subclause 866.212(2), the applicant satisfied the subclause if he or she had been granted a Subclass 785 (Temporary Protection) visa, whether or not the applicant still held the visa, In addition the applicant was not to have left Australia since that visa was granted.
The reason for the amendment is to ensure that a former Subclass 785 (Temporary Protection) visa holder who has had their visa cancelled for any reason will be eligible only for grant of a further Subclass 785 (Temporary Protection) visa in the first instance.
This is because prior to these amendments, a former temporary protection visa holder who had his or her temporary protection visa cancelled and who still required protection may have been eligible for the grant of a permanent protection visa, as he or she would have been immigration cleared through grant of the previous temporary protection visa. However, such a person may not have held their cancelled visa for the otherwise necessary 'qualifying period' of temporary residence. This is anomalous as they would receive more beneficial treatment than a temporary protection visa holder whose visa had not been cancelled.
Item [4] - Schedule 2, after clause 866.222
This item inserts new clauses 866.222A and 866.222B.
New clause 866.222A requires that applicants who have made specific claims under the Refugees Convention (ie, the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) will not be granted a permanent protection visa if they have been convicted, within the last 4 years, of an offence against a law of the Commonwealth, a State or Territory which carries a maximum penalty of 12 months imprisonment.
New clause 866.222B deals with an applicant who claims to be a member of the family unit of a person who has made specific claims under the Refugees Convention and who has applied for Protection (Class XA) visa. Such a person must also comply with the requirement in clause 866.222A, as must the claimant of whose family unit that person is a part.
The effect of this provision is that a Subclass 866 (Protection) visa cannot be granted to:
• an applicant who has made specific claims under the Refugees Convention (the claimant) where that applicant has been convicted of an offence mentioned in new clause 866.222A;
• a member of the same family unit as the claimant mentioned in the dot point above, where the claimant in the dot point above has been convicted of an offence mentioned in new clause 866.222A; or
• an applicant who is a member of the same family unit as the claimant mentioned in the first dot point, above, where the applicant has been convicted of ail offence mentioned in new clause 866.222A,
until the four year period mentioned in clause 866.222A has ceased.
Parallel provisions have not been introduced into Part 785. Therefore, a person found to be owed protection obligations under the Refugees Convention (who has been convicted of a criminal offence in Australia carrying a maximum penalty of imprisonment of twelve months or more) may still be eligible for the grant of the Subclass 785 (Temporary Protection) visa, provided that they meet the other criteria for grant of that visa, including existing character provisions.
The provisions will apply to both unauthorised arrivals and asylum seekers in the community. They will ensure that applicants who commit less serious criminal offences will receive protection where required under the Refugees Convention, but will need to demonstrate a period of good behaviour before becoming eligible to receive the added benefits of permanent residence and family sponsorship rights. The provisions recognise, pursuant to Article 2 of the Refugees Convention, that a refugee has duties to the country of refuge, which require in particular that he or she conforms to its laws and regulations as well as to measures taken for the maintenance of public order.