Migration Act 1958

Migration Amendment Regulations 2005 (No. 11)

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:

· subsection 65A(1) of the Act, inserted by the Migration and Ombudsman Legislation Amendment Act 2005, provides that regulations may prescribe the circumstances in which the 90 day period within which the Minister must make a decision on an application for a protection visa will start; and

· subsection 91Y(10) of the Act, inserted by the Migration and Ombudsman Legislation Amendment Act 2005, provides that the ‘decision period’ for the purposes of section 91Y means the period of 90 days starting either on the day on which the application for the protection visa was made or, in the circumstances prescribed in the regulations, on the day prescribed.

The proposed Regulations would amend the Migration Regulations 1994 (the Principal Regulations) to prescribe the circumstances and days on which the 90 day period starts for the purposes of subsection 65A(1) and subsection 91Y(10). In particular, the proposed Regulations would provide that in the case of an applicant for a protection visa who already hold a certain temporary protection or humanitarian visa, the 90 day period for making a decision would commence once the applicant has held his or her current visa for a specified period. The specified period would vary according to the visa class, reflecting the existing criteria in the Principal Regulations which provide that such persons are not eligible under the regulations for a permanent protection visa until they have held the temporary visa for that period.

Details of the Regulations are set out in the Attachment.

The Regulations commence the day after registration.

0512759A-051024Z

ATTACHMENT

Details of the proposed Migration Amendment Regulations 2005 (No. 11)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2005 (No. 11)

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the day after registration.

Regulation 3 – Amendment of Migration Regulations 1994

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in the Schedule.

Schedule – Amendments

Item [1] After regulation 2.06

This item would insert new regulation 2.06AA in Division 2.1 of Schedule 1 to the Principal Regulations.

Regulation 2.06AA would set out, for paragraph 65A(1)(d) and paragraph (b) of the definition of ‘decision period’ in subsection 91Y(10) of the Migration Act 1958 (the Act), prescribed circumstances and, in the prescribed circumstances, the day on which the 90 day period starts. In particular, it would provide that in the case of protection visa applicants who already hold certain temporary protection or humanitarian visas, the 90 day period for making a decision under section 65A, and the 90 day ‘decision period’ for section 91Y, would commence when the applicant has held his or her current visa for a specified period.

Section 65A of the Act provides that decisions on protection visa applications must be made within 90 days. The decision period is to start either on the day the application is made (or remitted to the Minister by any court or tribunal) or, in circumstances prescribed by the regulations, on the day prescribed by the regulations. Section 91Y of the Act also provides for periodic reporting by the Secretary to the Minister on applications for protection visas for which the Minister has not made a decision under section 65 within the time limits provided for by section 65A of the Act.

In accordance with existing permanent protection visa criteria to be satisfied at the time of decision, some protection visa applicants are not able to be granted a permanent protection visa (Class XA) (Subclass 866) until they have held a temporary protection visa for a certain period of time. In particular, applicants who hold a temporary protection visa (Class XA) (Subclass 785) must have held that visa for 30 months (or a shorter period if the Minister so determines) before they are able to be granted a subclass 866 visa. Similarly, applicants who hold a Secondary Movement Relation (Temporary) visa (Subclass 451) must have held that visa for 54 months (or a shorter period if the Minister so determines) before they can be granted a subclass 866 visa. Finally, an applicant for a Protection (Class XA) visa who has

been offered a temporary stay by the Australian Government for the purpose of an applications for a Temporary (Humanitarian Concern) (Class UO) visa, or who is the member of the family unit of such a person, cannot be granted a subclass 866 visa until 30 months (or a shorter period) has elapsed from when the offer was made.

Where such temporary visa holders apply for further protection before the specified period has elapsed, their application is held by the Department and a decision is not made until that period has passed.

This amendment would ensure that, where such an applicant makes a protection visa application before the 30 month or 54 month (or shorter period) has expired, the 90 days for making a decision under section 65A, and for determining the ‘decision period’ in section 91Y, commences only when that period has expired.

This item also inserts a Note explaining the operation of section 65A and operation of paragraph (b) of the definition of decision period in subsection 91Y(10).

The table would set out the following prescribed circumstances and for those prescribed circumstances the day on which the 90 day period starts:

Item 1

The prescribed circumstances are that an applicant for a Protection (Class XA) visa is a holder of a Subclass 785 (Temporary Protection) visa at the time of decision on the application for the Protection (Class XA) visa. In addition, the applicant must have applied for the Protection (Class XA) visa during a continuous period of 30 months during which the applicant has held the Subclass 785 or that visa and another Subclass 785 visa.

The 90 day period starts, where the Minister has specified a shorter period for paragraph 866.228(b) of Schedule 2 to the Principal Regulations, on the first day after the end of the shorter period. Where the Minister has not specified a shorter period, the 90 days starts on the first day after the day on which the applicant has held the Subclass 785 visa or that visa and another Subclass 785 visa, for a continuous period of 30 months.

Item 2

The prescribed circumstances are that an applicant for a Protection (Class XA) visa is a holder of a subclass 451 (Secondary Movement Relocation (Temporary)) visa at the time of decision on the application for the Protection (Class XA) visa and that the applicant applied for the Protection (Class XA) visa during a continuous period of 54 months during which the applicant has held the Subclass 451 visa.

The 90 day period starts, where the Minister has specified a shorter period for paragraph 866.228A(b) of Schedule 2 to the Principal Regulations, on the first day after the end of the shorter period. Where the Minister has not specified a shorter period, the 90 days starts on the first day after the day on which the applicant has held the Subclass 451 visa for a continuous period of 54 months.

Item 3

The prescribed circumstances are that an applicant for a Protection (Class XA) visa, or a member of the family unit of an applicant for a Protection (Class XA) visa, has been offered a temporary stay in Australia by the Australian Government for the purpose of an application for a Temporary (Humanitarian Concern) (Class UO) visa, as provided for by regulation 2.07AC and the applicant applied for the Protection (Class XA) visa not later than 30 months after the date the offer was made.

The 90 day period starts, where that Minister has specified a shorter period for paragraph 866.229(b) of Schedule 2 to the Principal Regulations, on the first day after the end of the shorter period. Where the Minister has not specified a shorter period, the 90 days starts on the first day after the end of the period of 30 months starting on the date on which the offer was made.

Commonwealth Numbered Regulations - Explanatory Statements

Issued by the Minister for Immigration

and Multicultural and Indigenous Affairs

Migration Act 1958