Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 5) 2004 NO. 223

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 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

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

•       subsection 46(3) of the Act, which 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; and

•       paragraphs 46(4)(b) and (c) of the Act, which provide that, without limiting subsection 46(3), the regulations may also prescribe how and where an application for a visa of a specified class must be made.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to: amend Internet application requirements for Tourist (Short Stay) visas; amend the application requirements for Refugee and Humanitarian visas; and make minor technical amendments.

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

•       provide the Minister with discretion to require certain applicants for a Tourist (Short Stay) visa who make their application using the Internet to meet certain criteria relating to the reason for the visit and their ability to fund the visit;

•       require applications for Refugee and Humanitarian visas that are made by a class of persons specified in a Gazette Notice to be sent directly to specified addresses within Australia to improve efficiency and reduce visa processing time for applicants; and

•       make various technical and consequential amendments.

Details of the Regulations are set out in the Attachment.

Schedule 1 to the Regulations commences on gazettal and Schedule 2 to the Regulations commences on 1 September 2004. The different commencement dates are in line with critical departmental visa processing system changes.

ATTACHMENT

Details of the proposed Migration Amendment Regulations 2004 (No. 5)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 5).

Regulation 2 - Commencement

These Regulations commence as follows:

(a)       on the date of their notification in the Gazette - regulations 1 to 5 and Schedule 1;

(b)       on 1 September 2004 - Schedule 2

Regulation 3 - Amendment of Migration Regulations 1994

Schedules 1 and 2 amend the Migration Regulations 1994.

Regulation 4 - Transitional - Schedule 1

The amendments made by Schedule 1 apply in relation to an application for a visa made on or after the commencement of this regulation.

Regulation 5 - Transitional - Schedule 2

The amendments made by Schedule 2 apply in relation to an application for a Refugee and Humanitarian (Class XB) visa made on or after 1 September 2004.

Schedule 1 - Amendments relating to Subclass 676 (Tourist (Short Stay)) visas

Item [1] - Subparagraph 676.214(e)(iii)

This item amends subparagraph 676.214(e)(iii) in Schedule 2 to the Principal Regulations. This amendment is consequential to the insertion of new paragraph 676.214(f) in Schedule 2 to the Principal Regulations by these Regulations (see item 2 below).

Item [2] - After Paragraph 676.214(e)

This item inserts new paragraph 676.214(f) in Schedule 2 to the Principal Regulations.

New paragraph 676.214(f) clarifies that, in addition to the current requirements in clause 676.214, the Minister must be satisfied that the applicant does not need to meet the requirements contained in clause 676.215.

Currently certain Subclass 676 (Tourist (Short Stay)) visa applicants can apply using the Internet. For Internet applicants, the relevant time of application criteria are clauses 676.214 and 676.215. Clause 676.214 requires that an applicant must declare certain information about their travel intentions and personal affairs. The declarations are sufficient for the applicant to satisfy the relevant criteria. Clause 676.215 involves greater scrutiny as applicants may be requested to provide more evidence to substantiate their claims.

From 1 July 2004, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) is permitting applicants from the nine new European Union accession countries to apply using the Internet for a Tourist (Short Stay) visa. However, there are some regions in these countries that the Department considers a high immigration risk. In these cases, the Department wants to be able to undertake more rigorous assessments of applicants to establish the authenticity of their claims, notwithstanding any statements that the person may have made in their application.

The purpose of these amendments is to allow the Minister, or the Minister's delegate, to decide in a particular case whether the requirements of clause 676.214 or 676.215 need to be met based on the level of immigration risk.

The effect of an Internet applicant being asked to meet clause 676.215 rather than 676.214 is that typically they will need to provide further information to satisfy the decision maker regarding their claim to be granted a Tourist (Short Stay) visa.

Schedule 2 - Amendments relating to Refugee and Humanitarian (Class XB) visas

Item [1] - After regulation 2.07AL

This item amends the Principal Regulations to insert new regulation 2.07AM in Part 2 of the Principal Regulations. New regulation 2.07AM provides that an application for a Refugee and Humanitarian (Class XB) visa made pursuant to paragraph 1402(3)(a) of Schedule 1 to the Principal Regulations is taken to have been made outside Australia.

This amendment is consequential to the amendments made to paragraph 1402(3)(a) by these Regulations (see item 2 below).

Item [2] - Schedule 1, paragraph 1402(3)(a)

This item amends paragraph 1402(3)(a) of Schedule 1 to the Principal Regulations by substituting paragraph 1402(3)(a) with new paragraph 1402(3)(a) and inserting new paragraph 1402(3)(aa) in Schedule 1 to the Principal Regulations.

New paragraph 1402(3)(a) provides that an application for a Refugee and Humanitarian (Class XB) visa by a person who is included in a class of persons specified in a Gazette Notice for this paragraph must be made by either posting the application (with the correct pre-paid postage) to an address in Australia specified by the Minister or having the application delivered by courier to an address in Australia specified by the Minister.

A note is inserted after paragraph 1402(3)(a) to clarify that an application made pursuant to paragraph 1402(3)(a) is taken to have been made outside Australia in accordance with new regulation 2.07AM.

New paragraph 1402(3)(aa) of Schedule 1 to the Principal Regulations provides that all applicants who do not fall within the class of persons stipulated in the Gazette Notice for paragraph 1402(3)(a) must make their applications outside Australia.

At present all applications for Class XB visas must be lodged at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia. Currently applications that are made on particular forms are sent to Australia for initial processing. Potentially successful applications are then sent back to the diplomatic, consular or migration office for further processing and final determination.

These amendments aim to limit the need for particular overseas posts to send Class XB applications on to Australia for processing by requiring applicants who are lodging their applications on particular forms, at specified diplomatic, consular or migration offices, to send their applications directly to the relevant office in Australia.

It is envisaged that this new system will improve and expedite the processing of Class XB visa applications by ensuring that the applications will be sent directly to the site of initial processing.

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