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MIGRATION AMENDMENT REGULATIONS 2005 (NO. 7) (SLI NO 172 OF 2005)
EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 172
Migration Act 1958
Migration Amendment Regulations 2005 (No. 7)
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, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 in respect of the Subclass 050 Bridging (General) visa.
In particular, the Regulations amend the Principal Regulations to provide that persons seeking:
· a declaration from a court that the Migration Act 1958 does not apply to the person; or
· merits or judicial review of a decision made pursuant to the Australian Citizenship Act 1948;
are eligible to be granted a Subclass 050 Bridging (General) visa to allow them to remain lawfully in Australia while awaiting the outcome of proceedings. Their immediate family members would also be eligible for a Subclass 050 Bridging (General) visa. These amendments are a response to a gap in the Bridging visa program whereby certain unlawful non-citizens undertaking court proceedings in relation to their citizenship status are not eligible for the grant of a bridging visa and must therefore be held in immigration detention, which has been highlighted by recent high profile cases.
Details of the Regulations are set out in Attachment B.
The Regulations commence on the day after registration.
The Office of Regulation Review in the Productivity Commission has been consulted and advises that the Regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.
No other consultations were conducted in relation to the Regulations, as the amendments were considered not to have relevant implications for any external agencies or other bodies.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
0508553A-050630Z
ATTACHMENT A
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 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.
In addition to subsection 504(1), the following provisions may apply:
· subsection 29(1) which provides that the Minister may grant a non-citizen permission, known as a visa, to travel to and enter Australia and remain in Australia;
· section 31 of the Act, which deals with classes of visas. In particular:
- subsection 31(1) of the Act, which provides that the regulations are to prescribe classes of visas;
- subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
- subsection 31(4) of the Act, which provides that the regulations may prescribe whether visas of a particular class are visas to travel to and enter Australia, or to remain in Australia, or both;
- subsection 31(5) of the Act, which provides that the regulations may specify that a visa is a visa of a particular class;
· subsection 40(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
Details of the proposed Migration Amendment Regulations 2005 (No. 7)
Regulation 1 – Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 7).
Regulation 2 – Commencement
This regulation provides that these Regulations commence on the day after registration.
Regulation 3 – Amendment of Migration Regulations 1994
This regulation provides that these Regulations amend the Migration Regulations 1994 (‘the Principal Regulations’).
Schedule 1 – Amendments
Item [1] – Schedule 2, subclause 050.212(1)
This item amends subclause 050.212(1) of Schedule 2 to the Principal Regulations.
This amendment is consequential to amendments made by items [2] and [3] of these Regulations and will ensure that an applicant will meet the requirements of subclause 050.212(1) if the applicant meets the requirements of new subclauses 050.212(4AAA) or (4AB).
Item [2] – Schedule 2, after subclause 050.212(4)
This item inserts new subclause 050.212(4AAA) after subclause 050.212(4) of Schedule 2 to the Principal Regulations.
This amendment will enable a person who has applied for:
· a declaration from a court that the Act does not apply to the person; or
· judicial review of a decision made in relation to the person under the Australian Citizenship Act 1948 (‘the Citizenship Act’); or
· merits review of a decision made in relation to the person under the Citizenship Act;
to be eligible to be granted a Subclass 050, Bridging (General) visa, where the proceedings for the declaration or review have not been completed.
The purpose of this amendment is to allow those people who meet the requirements of this new subclause and the other relevant Schedule 2 criteria, to be granted a Subclass 050 Bridging (General) visa, which will allow them to remain in Australia lawfully while awaiting the outcome of their application for a declaration or their review proceedings.
Item [3] – Schedule 2, after subclause 050.212(4AA)
This item inserts new subclause 050.212(4AB) after subclause 050.212(4AA) of Schedule 2 to the Principal Regulations.
This amendment will enable a person who is a member of the immediate family of a person who satisfies the new subclause 050.212(4AAA), inserted by item [2] of these Regulations, and other relevant Schedule 2 criteria, to be eligible to be granted a Subclass 050 Bridging (General) visa.
Regulation 1.12AA of the Principal Regulations provides that, for the purpose of the Principal Regulations, a person 'A' is a member of the immediate family of another person 'B' if:
(a) A is a spouse of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B is not 18 years or more.
The amendment will also enable a person who has not turned 18, who is the brother or sister of a person who has also not turned 18 and who satisfies the new subclause 050.212(4AAA), to be eligible to be granted a Subclass 050 Bridging (General) visa, where he or she also satisfies the other relevant Schedule 2 criteria.
The purpose of this amendment is to allow the close family members of those people who meet the requirements of new subclause 050.212(4AAA), inserted by item [2] of these Regulations, to be granted a Subclass 050 Bridging (General) visa which will allow them to remain in Australia lawfully while awaiting the outcome of the application for a declaration or the review proceedings.
Item [4] – Schedule 2, subclause 050.212(4A)
This item amends subclause 050.212(4A) of Schedule 2 to the Principal Regulations.
This amendment provides that for the purposes of new subclause 050.212(4AAA), inserted by item [2] of these Regulations, the applicant will be taken to have applied for judicial review when they are included in a representative proceeding in the Federal Court or the High Court.
Item [5] – Schedule 2, subclause 050.222(1)
This item amends subclause 050.222(1) of Schedule 2 to the Principal Regulations.
This amendment is consequential to amendments made by item [6] of these Regulations.
The effect of this amendment is to provide that where a person meets the requirements of new subclause 050.222(4), inserted by item [6] of these Regulations, they will be exempt from the requirement that they have been interviewed by an officer for the purposes of clause 050.222.
Item [6] – Schedule 2, subclause 050.222 (3), note
This item amends the note to subclause 050.222(3) of Schedule 2 to the Principal Regulations.
This amendment clarifies that the note, which explains that a Bridging E (Class WE) visa may be granted to a person who has not made an application for a Bridging E (Class WE) visa in certain circumstances, relates specifically to subclauses 050.222(2) and (3).
Item [7] – Schedule 2, subclause 050.222(3), after the note
This item inserts new subclause 050.222(4) after the note to subclause 050.222(3) of Schedule 2 to the Principal Regulations.
This amendment provides that new subclause 050.222(4) will apply where the visa applicant is a person:
· to whom new subclause 050.212(4AAA), inserted by item [2] of these Regulations, applies; or
· to whom new subclause 050.212(4AB), inserted by item [3] of these Regulations, continues to apply.
The effect of this amendment is to provide that where a person:
· has applied for a declaration from a court that the Act does not apply to the person; or
· has applied for judicial review of a decision made in relation to the person under the Citizenship Act; or
· has applied for merits review of a decision made in relation to the person under the Citizenship Act; or
· is a close family member of a person who has sought such a declaration or review;
they will be exempt from the time of decision criterion that the applicant has been interviewed by an officer for the purposes of clause 050.222.
Item [8] – Schedule 2, paragraph 050.511A(b)
This item amends paragraph 050.511A(b) of Schedule 2 to the Principal Regulations.
This item is a technical amendment and provides that a bridging visa granted to a non-citizen on the basis that the non-citizen is a member of the family unit of a party to judicial review proceedings, permits the holder to remain in Australia until the bridging visa held by the party to the judicial review proceedings ceases to be in effect.
The purpose of this amendment is to make the language of clause 050.511A consistent with section 82 of the Act, which deals with when visas cease to be in effect, rather than the “expiry” of visas.
Item [9] – Schedule 2, after clause 050.511A
This item inserts new clauses 050.511B, 050.511C, 050.511D and 050.511E into Schedule 2 to the Principal Regulations.
The purpose of these amendments is to prescribe the circumstances in which a bridging visa granted to an applicant who satisfies new subclause 050.212(4AAA) or 050212(4AB), inserted by Items [2] and [3] of these Regulations respectively, comes into effect and ceases to be in effect.
New clause 050.511B provides that a bridging visa granted to a person who has applied for a declaration from a court that the Act does not apply to the person, comes into effect on grant and permits the holder to remain in Australia until 28 days after proceedings for the declaration are completed.
New clause 050.511C provides that a bridging visa granted to a person who has applied for judicial review of a decision made in relation to the person under the Citizenship Act, comes into effect on grant and permits the holder to remain in Australia until 28 days after the latest of:
· the day the judicial review proceedings are completed;
· if the matter is remitted to the Minister or a review authority for reconsideration – the day the non-citizen is notified of the decision of the Minister or review authority;
· if the non-citizen withdraws his or her application for judicial review – the day the application is withdrawn;
· if the non-citizen is taken to have applied for judicial review under 050.212(4A), which relates to representative proceedings, and withdraws or is struck out of a the representative proceedings for judicial review – the day the visa holder withdraws or is struck out.
New clause 050.511D provides that a bridging visa granted to a person who has applied for merits review of a decision made in relation to the person under the Citizenship Act, comes into effect on grant and permits the holder to remain in Australia until 28 days after the latest of:
· the day the non-citizen is notified of the merits review decision by the Administrative Appeals Tribunal;
· if the matter is remitted to the Minister for reconsideration – the day the non-citizen is notified, by the Minister, of the Minister’s decision; or
· if the non-citizen withdraws his or her application for merits review – the day the application is withdrawn.
This amendment also adds a Note to new clause 050.511D which sets out that certain decisions made under the Citizenship Act are reviewable by the Administrative Appeals Tribunal. The purpose of the Note is to assist readers by providing a prompt that Regulation 18A of the Administrative Appeals Tribunal Regulations makes provision for the service of documents for notification of decisions and other matters under the Administrative Appeals Tribunal Act 1975.
New clause 050.511E provides that a bridging visa granted to a person on the basis that the person meets the requirements of subclause 050.212(4AB), inserted by Item [3] of these Regulations, comes into effect on grant and permits the holder to remain in Australia until the bridging visa granted to the person who meets the requirements of subclause 050.212(4AAA) ceases to be in effect.
Item [10] – Schedule 2, after clause 050.612A
This item inserts new clause 050.612B after clause 050.612A of Schedule 2 to the Principal Regulations.
The amendment provides that no conditions are to be applied to a visa granted to a person who meets the requirements of new subclause 050.212(4AAA) or (4AB), inserted by Items [2] and [3] of these Regulations, respectively.
The purpose of this amendment is to ensure that amongst other things, a person granted a bridging visa under these circumstances will have unrestricted work rights while their visa is in effect.