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MIGRATION AMENDMENT REGULATIONS 2007 (NO. 10) (SLI NO 274 OF 2007)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 274

 

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 10)

 

 

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 Principal Regulations to consider certain applicants for Contributory Parent (Migrant) (Class CA) and Contributory Aged Parent (Residence) (Class DG) visas who:

·        have held a temporary contributory parent visa at any time in the 28 days immediately before applying; or

·        have held a temporary contributory parent visa and for whom compassionate and compelling circumstances exist;

to be considered as the holder of a temporary contributory parent visa at the time of application to allow them to benefit from lower visa application charges and less stringent criteria for the grant of a permanent contributory parent visa.

The Regulations also allow applicants who have held a temporary contributory parent visa at any time since last entering Australia to be able to apply for a wider range of visas if they are outside Australia.

The Regulations also make amendments to the visa application charge for permanent contributory parent visas. These proposed amendments, however, result in no net increase in the visa application charge so would not exceed the limit set by the Contributory Parent Visa Composite Index published in accordance with subsections 45B(3) and (4) of the Act. The Contributory Parent Visa Composite Index is a formula developed by the Australian Government Actuary to ensure that the charges for a contributory parent visa increase in a way that accurately reflects the increase in health costs, as parent visa health costs have been found to increase over time at a rate faster than the Consumer Price Index, the normal index used in adjusting charges levied by the Department.

Details of the Regulations are set out in Attachment B.

The Regulations commence on 10 September 2007.

As required by the Office of Best Practice Regulation, a preliminary assessment of the amendments made by the Regulations was undertaken and they were found to no compliance cost to business or impact on competition. No other external consultation was undertaken as the amendments were considered not to have relevant implications for any external agencies or organisations.

The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.


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.

In addition to subsection 504(1), the following provisions may apply:

·        section 31 of the Act, which deals with classes of visa, in particular:

-        subsection 31(1), which provides that there are to be prescribed classes of visas;

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

·        section 45B of the Act, which provides that the amount of a visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;

·        subsection 45C(1) of the Act, which provides that the regulations may provide that a visa application charge may be payable in instalments, specify how those instalments are to be calculated, and specify when instalments are payable;

·        section 46 of the Act, which provides when an application for a visa is a valid application, and in particular:

-        subsection 46(1), which provides that an application for a visa is valid, if and only if, it is for a visa of a class specified in the application, it satisfies the criteria and requirements prescribed under section 46, any visa application charge that the regulations required to be paid at the time when the application is made has been paid, any fees payable in respect of it under the regulations have been paid, and the application is not prevented by section 48, 48A, 91E, 91K, 91P, 161, 164D, 195 or 501E of the Act;

-        subsection 46(3), 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;

-        subsection 46(4), which provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made.


ATTACHMENT B

Details of the Migration Amendment Regulations 2007 (No. 10)

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 10)

Regulation 2 – Commencement

This regulation provides that these Regulations are to commence on 10 September 2007.

Regulation 3 – Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).

Regulation 4 – Transitional

This regulation provides that the amendments made by Schedule 1 apply in relation to an application for:

·        a Contributory Parent (Migrant) (Class CA) visa; or

·        a Contributory Aged Parent (Residence) (Class DG) visa;

made on or after the commencement of these Regulations.

Schedule 1 – Amendments

Item [1] – Subregulation 2.07AI(1)

This item amends subregulation 2.07AI(1) in Part 2 of the Principal Regulations to provide that subregulation 2.07AI(1) only applies to an application for a substantive visa made by a person who is “in Australia”.

Subregulation 2.07AI(1), as amended, provides that, for section 46 of the Act, an application for a substantive visa by a person in Australia who has, at any time since last entering Australia, held a Subclass 173 (Contributory Parent (Temporary)) visa is a valid application only if the application is for a Contributory Parent (Migrant) (Class CA) visa, a Medical Treatment (Visitor) (Class UB) visa or a protection visa.

The effect of this amendment is to allow applicants who have held a Subclass 173 visa at any time since last entering Australia to be able to apply for a wider range of visas if they are outside Australia.

Item [2] – Subregulation 2.07AI(2)

This item amends subregulation 2.07AI(2) in Part 2 of the Principal Regulations to provide that subregulation 2.07AI(2) only applies to an application for a substantive visa made by a person who is “in Australia”.

Subregulation 2.07AI(2), as amended, provides that, for section 46 of the Act, an application for a substantive visa by a person in Australia who has, at any time since last entering Australia, held a Subclass 884 (Contributory Aged Parent (Temporary)) visa is a valid application only if the application is for a Contributory Aged Parent (Residence) (Class DG) visa, a Medical Treatment (Visitor) (Class UB) visa or a protection visa.

The effect of this amendment is to allow applicants who have held a Subclass 884 visa at any time since last entering Australia to be able to apply for a wider range of visas if they are outside Australia.

Item [3] – Schedule 1, after subparagraph 1130(2)(a)(ia)

This item amends paragraph 1130(2)(a) to insert new subparagraphs 1130(2)(a)(ib) and (ic). Item 1130 provides the requirements a person must meet to make a valid application for a Contributory Parent (Migrant) (Class CA) visa. Paragraph 1130(2)(a) provides the amount applicants must pay as the first instalment of the visa application charge. The first instalment is payable at the time a person applies for a Contributory Parent (Migrant) visa.

New subparagraph 1130(2)(a)(ib) provides that for an applicant who has held a Subclass 173 (Contributory Parent (Temporary)) visa at any time in the 28 days immediately before making the application, the first instalment of the visa application charge is $190.

The purpose of new subparagraph 1130(2)(a)(ib) is to ensure that applicants who held a Subclass 173 visa at any time in the 28 days immediately before making the application pay the same, significantly lower, first instalment of the visa application charge as applicants who are the actual holders of a Subclass 173 visa at the time of application (see subparagraph 1130(2)(a)(i)).

New subparagraph 1130(2)(a)(ic) provides that for an applicant who has held a Subclass 173 visa, and who provides the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 173 visa for the purpose of the application, the first instalment of the visa application charge is $1,390.

For new subparagraph 1130(2)(a)(ic), applicants who provide the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 173 visa for the purpose of the application, pay the full first instalment because the assessment as to whether or not there are compassionate and compelling circumstances does not occur until the relevant criteria for the grant of a Subclass 143 (Contributory Parent) visa has been assessed. Subclass 143 is the only subclass of visa in Contributory Parent (Migrant) (Class CA).

The amendment made by item [4] of this Schedule provides a reduced second instalment visa application charge (payable before the visa is granted) for applicants for a Contributory Parent (Migrant) (Class CA) visa in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist. This second instalment is reduced by $1,200 which is the difference between the $190 first instalment payable in accordance with subparagraph 1130(2)(a)(i) and new subparagraph 1130(2)(a)(ib), and the $1,390 first instalment payable by applicants claiming compassionate and compelling circumstances under new subparagraph 1120(2)(a)(ic).

Despite the broader interpretation of who constitutes the holder of a Subclass 173 visa made by the insertion of new subitem 1130(5) by item [5] of this Schedule, the first instalment fee payable under subparagraph 1130(2)(a)(i) only applies to applicants who are the actual holders of Subclass 173 visas at the time of application. New subparagraphs 1130(2)(a)(ib) and (ic) specifically apply to persons who meet new paragraph 1130(5)(b) or (c) respectively.

Item [4] – Schedule 1, after subparagraph 1130(2)(b)(ii)

This item amends paragraph 1130(2)(b) to insert new subparagraphs 1130(2)(b)(iia) and (iib). Item 1130 provides the requirements a person must meet to make a valid application for a Contributory Parent (Migrant) (Class CA) visa. Paragraph 1130(2)(b) provides the amount applicants must pay as the second instalment of the visa application charge which is payable before a Contributory Parent (Migrant) visa is granted.

New subparagraph 1130(2)(b)(iia) provides that for an applicant who has held a
Subclass 173 (Contributory Parent (Temporary)) visa at any time in the 28 days immediately before making the application, the second instalment of the visa application charge is $12,625.

The purpose of new subparagraph 1130(2)(b)(iia) is to ensure that applicants who held a Subclass 173 visa at any time in the 28 days immediately before making the application pay the same, significantly lower, second instalment of the visa application charge as applicants who were the actual holders of a Subclass 173 visa at the time of application (see subparagraph 1130(2)(b)(i)). In any other case, the second instalment of the visa application charge is $31,555 (see subparagraph 1130(2)(b)(iv)).

New subparagraph 1130(2)(b)(iib) provides that for an applicant who has held a
Subclass 173 visa, and in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist for the person to be considered to be the holder of a
Subclass 173 visa at the time of application, the second instalment of the visa application charge is $11,425.

New subparagraph 1130(2)(b)(iib) provides a reduced second instalment of the visa application charge for applicants in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist. This second instalment is reduced by $1,200 which is the difference between the $190 first instalment payable in accordance with subparagraph 1130(2)(a)(i) and new subparagraph 1130(2)(a)(ib), and the $1,390 first instalment payable by applicants claiming compassionate and compelling circumstances under new subparagraph 1120(2)(a)(ic).

Despite the broader interpretation of who constitutes the holder of a Subclass 173 visa made by the insertion of new subitem 1130(5) by item [5] of this Schedule, the second instalment fee payable under subparagraph 1130(2)(b)(i) only applies to applicants who are the actual holders of Subclass 173 visas at the time of application. New subparagraphs 1130(2)(b)(iia) and (iib) specifically apply to persons who meet new paragraph 1130(5)(b) or (c) respectively.

Item [5] – Schedule 1, after subitem 1130(4)

This item inserts new subitem 1130(5) in item 1130 of Schedule 1 to the Principal Regulations. Item 1130 provides the requirements a person must meet to make a valid application for a Contributory Parent (Migrant) (Class CA) visa.

New subitem 1130(5) provides that in this item, a reference to an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa means an applicant who, as the case may be:

·        currently holds a Subclass 173 visa; or

·        has held a Subclass 173 visa at any time in the 28 days immediately before making the application; or

·        has held a Subclass 173 visa, and who provides the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 173 visa for the purpose of the application.

Applicants who are holders of Subclass 173 visas are eligible for a number of visa application concessions if they apply for the corresponding permanent Contributory Parent (Migrant) (Class CA) visa during the two years period that the Subclass 173 visa is in effect. For example, applicants who are holders of a Subclass 173 visa pay lower first and second instalments of the visa application charge and don’t have to be reassessed against the “balance of family” test. The balance of family test generally makes it a requirement that all or the majority of an applicant’s children are resident in Australia.

The purpose of this amendment is to enable certain applicants who have failed to lodge their application for a Contributory Parent (Migrant) (Class CA) visa within the two year period to be placed in the same position as they were in before the visa ceased, that is, to have access to the same concessions as applicants who are holders of the Subclass 173 visa.

Item [6] – Schedule 1, after subparagraph 1130A(2)(a)(iia)

This item amends paragraph 1130A(2)(a) to insert new subparagraphs 1130(2)(a)(iib) and (iic). Item 1130A provides the requirements a person must meet to make a valid application for a Contributory Aged Parent (Residence) (Class DG) visa. Paragraph 1130A(2)(a) provides the amount applicants must pay as the first instalment of the visa application charge. The first instalment is payable at the time a person applies for a Contributory Aged Parent (Residence) visa.

New subparagraph 1130A(2)(a)(iib) provides that for an applicant who has held a Subclass 884 (Contributory Aged Parent (Temporary)) visa at any time in the 28 days immediately before making the application, the first instalment of the visa application charge is $190.

The purpose of new subparagraph 1130A(2)(a)(iib) is to ensure that applicants who held a Subclass 884 visa at any time in the 28 days immediately before making the application pay the same, significantly lower, first instalment of the visa application charge as applicants who are the actual holders of a Subclass 884 visa at the time of application (see subparagraph 1130A(2)(a)(ii)).

New subparagraph 1130A(2)(a)(iic) provides that for an applicant who has held a Subclass 884 visa, and who provides the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 884 visa for the purpose of the application, the first instalment of the visa application charge is $2,060.

For new subparagraph 1130A(2)(a)(iic), applicants who provide the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 884 visa for the purpose of the application, pay the full first instalment because the assessment as to whether there are compassionate and compelling circumstances does not occur until the criteria for the grant of a Subclass 864 (Contributory Aged Parent) visa has been assessed. Subclass 864 is the only subclass of visa in Contributory Aged Parent (Residence) (Class DG).

The amendment made by item [7] of this Schedule provides a reduced second instalment visa application charge (payable before the visa is granted) for applicants for a Contributory Aged Parent (Residence) visa in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist. This second instalment is reduced by $1,870 which is the difference between the $190 first instalment payable in accordance with subparagraph 1130A(2)(a)(ii) and new subparagraph 1130A(2)(a)(iib), and the $2,060 first instalment payable by applicants claiming compassionate and compelling circumstances under new subparagraph 1130A(2)(a)(iic).

Despite the broader interpretation of who constitutes the “holder” of a Subclass 884 visa made by the insertion of new subitem 1130A(5) by item [8] of this Schedule, the first instalment fee payable under subparagraph 1130A(2)(a)(ii) only applies to an applicants who are the actual holders of Subclass 884 visas at the time of application. New subparagraphs 1130A(2)(a)(ib) and (ic) specifically apply to persons who meet new paragraph 1130A(5)(b) or (c) respectively.

Item [7] – Schedule 1, after subparagraph 1130A(2)(b)(ii)

This item amends paragraph 1130A(2)(b) to insert new subparagraphs 1130(2)(b)(iia) and (iib). Item 1130A provides the requirements a person must meet to make a valid application for a Contributory Aged Parent (Residence) (Class DG) visa. Paragraph 1130A(2)(b) provides the amount applicants must pay as the second instalment of the visa application charge which is payable before a Contributory Aged Parent (Residence) visa is granted.

New subparagraph 1130A(2)(b)(iia) provides that for an applicant who has held a Subclass 884 (Contributory Aged Parent (Temporary)) visa at any time in the 28 days immediately before making the application, the second instalment of the visa application charge is $12,625.

The purpose of new subparagraph 1130A(2)(b)(iia) is to ensure that applicants who held a Subclass 173 visa at any time in the 28 days immediately before making the application pay the same, significantly lower, second instalment of the visa application charge as applicants who were the actual holders of a Subclass 173 visa at the time of application (see subparagraph 1130A(2)(b)(i)). In any other case, the second instalment of the visa application charge is $31,555 (see subparagraph 1130A(2)(b)(iv)).

New subparagraph 1130A(2)(b)(iib) provides that for an applicant who has held a Subclass 884 visa, and in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 884 visa at the time of application, the second instalment of the visa application charge is $10,755.

New subparagraph 1130(2)(b)(iib) provides a reduced second instalment of the visa application charge for applicants in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist. This second instalment is reduced by $1,870 which is the difference between the $190 first instalment payable in accordance with subparagraph 1130A(2)(a)(i) and new subparagraph 1130A(2)(a)(ib), and the $2,060 first instalment payable by applicants claiming compassionate and compelling circumstances under new subparagraph 1130A(2)(a)(ic).

Despite the broader interpretation of who constitutes the “holder” of a Subclass 173 visa made by the insertion of new subitem 1130A(5) by item [8] of this Schedule, the second instalment fee payable under subparagraph 1130A(2)(b)(i) only applies to applicants who are the actual holders of Subclass 173 visas at the time of application. New subparagraphs 1130A(2)(b)(iia) and (iib) specifically apply to persons who meet new paragraph 1130A(5)(b) or (c) respectively.

Item [8] – Schedule 1, after subitem 1130A(4)

This item inserts new subitem 1130A(5) into item 1130A of Schedule 1 to the Principal Regulations. Item 1130A provides the requirements a person must meet to make a valid application for a Contributory Aged Parent (Residence) (Class DG) visa.

New subitem 1130(5) provides that in this item, a reference to an applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa means an applicant who, as the case may be:

·        currently holds a Subclass 884 visa; or

·        has held a Subclass 884 visa at any time in the 28 days immediately before making the application; or

·        has held a Subclass 884 visa, and who provides the Minister with evidence that compassionate and compelling circumstances exist for the person to be considered to be the holder of a Subclass 884 visa for the purpose of the application.

The purpose of this amendment made by this item is to the same effect as that for the amendment made by item [5] above.

Item [9] – Schedule 2, Division 143.1

This item inserts new clause 143.111 in Part 143 of Schedule 2 to the Principal Regulations. Part 143 provides the criteria for the grant of a Subclass 143 (Contributory Parent) visa.

New clause 143.111 provides that, in Part 143, a reference to an applicant who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa means a person:

·        who, at the time of application, holds a Subclass 173 visa; or

·        who has held a Subclass 173 visa at any time in the 28 days immediately before making the application; or

·        in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist for the person to be considered to have been the holder of a Subclass 173 visa at the time of application.

The effect of the amendment made by this item is to consider certain applicants who ceased to hold a Subclass 173 visa at the time of application to be holders to allow them to be assessed against the criteria for the grant of a Subclass 143 visa as if they were the holders of a Subclass 173 visa at the time of application. This will mean that, for example, such an applicant will not be required to satisfy the “balance of family” test. The balance of family test generally makes it a requirement that all or the majority of an applicant’s children are resident in Australia.

Item [10] – Schedule 2, Division 864.1

This item inserts new clause 864.111 in Part 864 of Schedule 2 to the Principal Regulations. Part 864 provides the criteria for the grant of a Subclass 864 (Contributory Aged Parent) visa.

New clause 864.111 provides that, in Part 864, a reference to an applicant who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa means a person:

·        who, at the time of application, holds a Subclass 884 visa; or

·        who has held a Subclass 884 visa at any time in the 28 days immediately before making the application; or

·        in relation to whom the Minister is satisfied that compassionate and compelling circumstances exist for the person to be considered to have been the holder of a Subclass 884 visa at the time of application.

The effect of the amendment made by this item is to consider certain applicants who ceased to hold a Subclass 884 visa at the time of application to be holders to allow them to be assessed against the criteria for the grant of a Subclass 864 visa as if they were the holders of a Subclass 884 visa at the time of application. This will mean that, for example, such an applicant will not be required to satisfy the “balance of family” test. The balance of family test generally makes it a requirement that all or the majority of an applicant’s children are resident in Australia.

 

 


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