Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 4) 2004 NO. 191

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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.

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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, the following provisions may apply:

•       subsection 91D(1) of the Act, which provides that a country is a safe third country in relation to a non-citizen, or in relation to a class of persons of which the non-citizen is a member, if the country is prescribed as a safe third country and the non-citizen has a prescribed connection with the country;

•       subsection 338(9) of the Act, which provides that a decision which is reviewable by the Migration Review Tribunal (the MRT) that is prescribed for the purposes of this subsection is an MRT-reviewable decision;

•       paragraph 504(1)(g) of the Act, which provides that the regulations may require assurances of support to be given in relation to persons seeking to travel to and enter, or remain in, Australia.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to: amend provisions relating to safe third countries; amend the definition of "assurance of support"; and make technical amendments relating to the numbering of new provisions which commence on 1 July 2004.

In particular, the Regulations effect changes to the Principal Regulations to:

•       prescribe the People's Republic of China (PRC) as a safe third country in relation to certain Vietnamese refugees who have settled in the PRC but who subsequently entered Australia without lawful authority, and provide that a person has a prescribed connection with the PRC if the person, or a parent of the person, resided in the PRC at any time before the person entered Australia;

•       amend the definition of "assurance of support" to refer to the new definition of this term in new Chapter 2C of the Social Security Act 1991;

•       rectify the duplicated numbering of two new provisions to be inserted in the Principal Regulations by the Migration Amendment Regulations (No. 2) and Migration Amendment Regulations (No. 3) which prescribe certain decisions to be MRT-reviewable decisions and which both commence on 1 July 2004.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 July 2004.

0405019A-040617Z

ATTACHMENT

Details of the Migration Amendment Regulations 2004 (No. 4)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 4).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 1 July 2004.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations) as amended by the Migration Regulations 2004 (No. 2) and the Migration Amendment Regulations 2004 (No. 3), the relevant provisions of which do not commence until 1 July 2004.

Schedule 1 - Amendments

Item [1] - Regulation 1.03, definition of assurance of support

This item inserts a new definition of assurance of support in regulation 1.03 of Part 1 of the Principal Regulations.

This amendment is consequential to amendments to Schedule 2 of the Principal Regulations by the Migration Amendment Regulations 2004 (No. 2) relating to assurances of support which are required to be provided to satisfy criteria for the grant of certain subclasses of visa.

Subdivision 2.7.2 of Part 2 of the Principal Regulations contains various provisions relating to the making, application and enforcement of assurances of support given after 19 December 1991. Subdivision 2.7.2 was amended to provide that it only applies to assurances given in relation to applications lodged after 19 December 1991 and accepted by the Minister before 1 July 2004. From 1 July 2004, assurance of support applications will be assessed by the Secretary of the Department of Family and Community Services by way of an amendment to the Social Security Act 1991 which inserts new Chapter 2C.

The purpose of the new definition of assurance of support is to provide that the meaning of the term "assurance of support" as used in the Principal Regulations is as provided in Division 2.7 for assurances approved by the Minister before 1 July 2004, and that in all other cases the definition of the term in the Social Security Act 1991 applies.

Item [2] - Regulation 2.12A, including the notes

This item substitutes regulation 2.12A in Part 2 of the Principal Regulations with new regulation 2.12A.

New subregulation 2.12A(1) prescribes, for paragraph 91D(1)(a) of the Act, that the People's Republic of China (PRC) is a safe third country in relation to certain Vietnamese refugees who settled in the PRC, who are covered by the agreement between Australia and the PRC, and who subsequently entered Australian unlawfully on or after 1 January 1996.

Under subsection 91(4) of the Act, a regulation made for the purposes of paragraph 91D(1)(a) of the Act ceases to be in force at the end of 2 years after the regulation commences. Under this provision, current regulation 2.12A ceases to be in force at the end of 30 June 2004.

New subregulations 2.12A(1) and (2) mirror current subregulations 2.12A(1) and (2).

New paragraph 2.12A(3)(a) refers to the updated agreement between Australia and the PRC constituted by the Memorandum of Understanding set out in Schedule 11 to the Principal Regulations, together with the exchange of letters between Australia and the PRC dated 15 April 2004 and 16 April 2004, the text of which is set out in new Schedule 12 of the Regulations (see item [6] below).

Item [3] - Subregulation 4.02(5)

This item amends subregulation 4.02(5) of Part 4 of the Principal Regulations by omitting paragraph 4.02(5)(h) which states that in the case of a decision to which paragraph 4.02(4)(1) applies - the former sponsor, or former approved sponsor, to whom the action relates, may make an application for review of that decision.

This amendment is necessary as two different paragraphs 4.02(5)(h), inserted by the Migration Amendment Regulations 2004 (No. 2) and the Migration Amendment Regulations 2004 (No. 3), exist. In order to ensure that this duplication does not result in one of these inserted provisions not coming into effect, the version of paragraph 4.02(5)(h) to be inserted by the Migration Amendment Regulations 2004 (No. 3) is omitted by this item and inserted as new paragraph 4.02(5)(j) into the Principal Regulations by these Regulations (see item [5] below).

Item [4] - Paragraph 4.02(5)(1)

This item amends paragraph 4.02(5)(1) of Part 4 of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 4.02(5)(j) in the Principal Regulations by these Regulations.

Item [5] - After Paragraph 4.02(5)(1)

This item inserts new paragraph 4.02(5)(j) in Part 4 of the Principal Regulations.

This amendment prescribes, for paragraph 347(2)(d) of the Act, that for a decision listed in new paragraph 4.02(4)(i) of the Principal Regulations an application for review by the MRT can only be made by the former sponsor, or former approved sponsor, to whom the decision relates.

Item [6] - Schedule 12

This item substitutes Schedule 12 to the Principal Regulations with new Schedule 12.

New Schedule 12 sets out the text of letters referred to in paragraph 2.12A(3)(a) exchanged between representatives of Australia and the People's Republic of China on 15 April 2004 and 16 April 2004.

The item is consequential to the substitution of regulation 2.12A of the Principal Regulations with new regulation 2.12A.

A regulation under Section 91D of the Migration Act 1958 has been laid before the Parliament prescribing the People's Republic of China (PRC) as a safe third country in relation to a person who entered Australia without lawful authority on or after 1 January 1996 and who either:

•       is or has been a Vietnamese refugee settled in the PRC; or

•       is a close relative of, or is dependent on such a person.

On 27 January 1995, the Australian Government prescribed the PRC as a safe third country in relation to Vietnamese refugees settled in the PRC, pursuant to a Memorandum of Understanding (MOU) between the Australian and PRC Governments concerning the return of Vietnamese refugees signed on 25 January 1995. On 5 June 1996 and 6 June 1996, the Australian and PRC Governments confirmed that the MOU of 25 January 1995 continued to apply. The Migration Regulations were amended on 1 July 1996 to reflect the MOU and the subsequent exchange of letters.

Through further exchanges of letters on 9 April 1998 and 10 April 1998, 18 February 2000 and 19 February 2000, and 4 April 2002 and 5 April 2002, the Australian and PRC Governments again confirmed that the MOU of 25 January 1995 continued to apply. The Migration Regulations were again amended to extend the operation of the safe third country agreements for further two year periods from 1 July 1997, 1 July 2000, and 1 July 2002.

A fifth exchange of letters on 15 April 2004 and 16 April 2004 again confirmed the intention of the Australian and PRC Governments to continue to apply the MOU of 25 January 1995. Regulation amendments have now been made to further extend the operation of the safe third country agreement for another two year period from 1 July 2004.

Following the making of the current regulations, I now table this statement, made in accordance with sub-section 91D(3) of the Act, which requires me to address:

•       the compliance by the PRC with relevant international law concerning the protection of Vietnamese refugees settled in the PRC;

•       the meeting by the PRC of relevant human rights standards for the Vietnamese refugees settled in the PRC; and

•       the willingness of the PRC to allow the Vietnamese refugees settled in the PRC who have subsequently travelled illegally to Australia to return to the PRC and to remain there.

The PRC is a party to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Refugees Convention). Between 1978 and 1989, some 285,000 people arrived in southern China from Vietnam seeking protection. In accordance with the Refugees Convention, and in cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), the PRC accepted these people as refugees and provided them with appropriate and continuing protection. This protection has included measures to ensure the material well being of the refugees on reception into the PRC and provision of the means for their resettlement and integration into Chinese society.

On their arrival in the PRC, the Vietnamese refugees were provided with food, shelter and medical services. Since that time, the PRC and UNHCR have provided assistance through a large number of projects aimed at creating employment opportunities. Rather than being left in refugee camps, the Vietnamese refugees have been assisted to create a new economic and social life integrated within the larger Chinese community.

The Australian Government continues to be satisfied that the Vietnamese refugees in the PRC have been protected in accordance with international law regarding the treatment of refugees and have been afforded the protection of the PRC. UNHCR has confirmed that returned Vietnamese refugees enjoy the same standards of protection as the rest of the Vietnamese refugee population in the PRC.

In terms of human rights, Australia is satisfied that the Vietnamese refugees are treated essentially as Chinese nationals. They are regarded as being permanently settled in the PRC. We understand their living standards are generally comparable to those of Chinese nationals and that they have the same basic rights and obligations as Chinese nationals, excepting the right to participate in elections. Vietnamese refugees in the PRC generally receive the same education, training and employment opportunities and have the same access to health care services as Chinese nationals, and in some cases, receive special assistance and concessions to facilitate their integration into Chinese society.

The PRC Government has confirmed that it is willing to accept the Vietnamese refugees returning from Australia, subject to agreed identification procedures, and the returnees will continue to enjoy the protection of the PRC.

Up to 13 April 2004, 915 Vietnamese refugees from the PRC have been returned to the PRC pursuant to the MOU. In accordance with the MOU, UNHCR is kept informed of progress with returns. There has been no threat of involuntary return to Vietnam and no evidence that returnees have suffered any discrimination or persecution on return.