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MIGRATION AMENDMENT REGULATIONS 2007 (NO. 14) (SLI NO 356 OF 2007)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 356

 

 

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 14)

 

 

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, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to:

 

Details of the Regulations are set out in Attachment B.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Schedule 1 to the Regulations is taken to have commenced on 10 September, Schedule 2 commences on 22 October 2007, Schedule 3 commences on 31 October and Schedule 4 commences on 1 January 2008.

 

Schedule 1 to the Regulations corrects an unintended consequence of the Migration Amendment Regulations 2007 (No. 9) which commenced on 10 September, which prevented the Minister giving refunds of the visa application charge (“VAC”) where applicants apply for visas by mistake. The amendments made by Schedule 1 to these amending regulations will be taken to have commenced on 10 September 2007 to restore the refund power from that date.

 

The Office of Legislative Drafting and Publishing advises that the amendments made by Schedule 1 to these Regulations would not be contrary to subsection 12(2) of the Legislative Instruments Act 2003 as the change would not result in:

 

o       the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration being affected so as to disadvantage that person; or

 

o       liabilities being imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

 

In relation to Schedules 1, 2, 3 & 4 the Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment Checklists were used to determine that there was no compliance cost to business or impact on competition.

Schedule 4 to the Regulations was developed in consultation with the Department of Families, Community Services and Indigenous Affairs. No other consultations were conducted in relation to this Schedule as the amendments were considered not to have relevant implications for any other external agencies or bodies.

 

 


 


 

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

· subsection 41(3) which provides that the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;

·        paragraph 45C(2)(b) of the Act provides that the regulations may make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge, and paragraph 504(1)(b) of the Act provides that the regulations may make provision for the refund of fees prescribed under the regulations;

· section 46 of the Act, which deals with the requirements for a valid application, 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 require 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.

 


 


ATTACHMENT B

 

Details of the Migration Amendment Regulations 2007 (No. 14)

 

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 14).

Regulation 2 – Commencement

This regulation provides that these Regulations commence, or are taken to have commenced, as follows:

(a) on 10 September 2007 — regulations 1 to 3 and Schedule 1;

(b) on 22 October 2007 — regulation 4 and Schedule 2;

(c) on 31 October 2007 — regulation 5 and Schedule 3;

(d) on 1 January 2008 — regulation 6 and Schedule 4.

 

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 Amendment Regulations 2007 (No. 9).

 

Regulation 4 – Amendment of Migration Regulations 1994

Subregulation 4(1) provides that Schedule 2 amends the Principal Regulations.

 

Subregulation 4(2) provides that the amendment made by Schedule 2 (which corrects a minor error in the values statement public interest criterion number in the time of decision criteria for a Work and Holiday visa) applies in relation to visa applications made in the period starting on 15 October 2007 and ending at the end of 22 October, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) on 21 October 2007; and an application for a visa made on or after 22 October 2007.

 

Regulation 5 –Amendment of Migration Regulations 1994

 

Subregulation 5(1) provides that Schedule 3 amends the Principal Regulations.

 

Subregulation 5(2) provides that the amendments made by items [1], [2] and [3] of Schedule 3 (which relate to the requirements for making an application for a Work and Holiday visa) apply in relation to an application for a visa made on or after 31 October 2007.

Subregulation 5(3) provides that the amendments made by items [4] and [5] of Schedule 3 (which relate to the discretionary conditions that may be imposed on a Work and Holiday visa) apply in relation to a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958, before 31 October 2007; or made on or after 31 October 2007.

Regulation 6 – Amendment of Migration Regulations 1994

Subregulation 6(1) provides that Schedule 4 amends the Principal Regulations.

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made but not finally determined (within the meaning of subsection 5(9) of the Act) before 1 January 2008, and to new applications made on or after 1 January 2008.

Where an Assurance of Support has been lodged but not accepted for the grant of a Subclass 116 or 836 visa immediately before 1 January 2008, the bond will not be required to be paid and the Assurance will be withdrawn. Where an Assurance of Support has been accepted and the bond paid, but no visa granted, immediately before 1 January 2008, the bond will be returned and the Assurance withdrawn.

Schedule 1 – Amendments relating to refunds of the visa application charge.

Item [1] – Subregulation 2.12F(3)

 

This item substitutes current subregulation 2.12F(3) as amended by item 11 of Schedule 1 to the Migration Amendment Regulations 2007 (No. 9) with new subregulations 2.12F(3) and 2.12F(3A).

 

Paragraph 2.12(3)(d) inserted by item 11 of Schedule 1 to the Migration Amendment Regulations 2007 (No. 9) led to the unintended consequence of preventing the Minister from giving refunds of the first instalment of the visa application charge (“VAC”) where applicants apply for visas by mistake, unless they made applications for a Temporary Business Entry (Class UC) visa.

 

This item will rectify this unintended consequence to the refund power made by the Migration Amendment Regulations 2007 (No. 9) and restore the refund power retrospectively from 10 September 2007.

New subregulation 2.12F(3) provides the circumstances in which the Minister may refund the amount paid by way of the first instalment of the VAC in relation to an application for a visa. It provides that the Minister may refund the first instalment of the visa application charge in relation to an application for a visa if the application was made because of a mistake by the applicant, and the applicant withdraws the application in writing and after the withdrawal the Minister receives a written request for a refund from:

 

(i)                  the person who paid the amount (the payer); or

(ii)                if the payer has died, or has a serious physical or mental incapacity, the payer’s legal personal representative; or

(iii)               if the payer is bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.

 

New subregulation 2.12F(3A) sets out additional circumstances in which the Minister has a discretion to refund the first instalment of the VAC. The additional circumstances apply to applicants for a Temporary Business Entry (Class UC) visa. The Minister may refund the VAC for an application for this visa made on the basis of an Australian business sponsorship or overseas business sponsorship, if the applicant withdraws the application because the applicant cannot satisfy the time of decision criteria, due to the application being based on an approved nomination of an activity in which the applicant is to work which, at the time of decision, no longer corresponds to the tasks of an occupation specified in a relevant Gazette Notice.

 

New paragraphs 2.12F(3A)(a) & (b) relevantly provide the Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if the application is for a Temporary Business Entry (Class UC) visa and the applicant withdraws the application because the criterion in paragraph 457.223 (4) (ed) or (ee) or (5) (ba) of Schedule 2 cannot be satisfied. In addition to the criteria set out in paragraphs 2.12F(3A)(a) &(b), new paragraphs 2.12F(3A)(c) & (d) provide that the Minister may only refund the first instalment of the VAC in relation to Temporary Business Entry (Class UC) visa applications if the applicant withdraws the application in writing and the Minister receives a written request for a refund from:

 

(i)                  the person who paid the amount (the payer); or

(ii)                if the payer has died, or has a serious physical or mental incapacity, the payer’s legal personal representative; or

(iii)               if the payer is bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.

 

Item [2] - Paragraph 2.12F(7)(b)

 

This item omits current paragraph 2.12F(7)(b) in the Principal Regulations and inserts a new paragraph 2.12F(7)(b). This is a technical amendment which is a consequence of the insertion of new subregulation 2.12F(3A) by item 1.

 

Schedule 2 – Amendment relating to the values statement and Work and Holiday visas

 

Item [1] – Schedule 2, paragraph 462.221(b)

 

This item replaces the number 4109 with 4019 in paragraph 462.221(b) in Part 462 (Subclass 462 (Work and Holiday) (Temporary) visa) of Schedule 2 to the Principal Regulations. This rectifies a minor typographical error in the number for the values statement public interest criterion in the time of decision criteria for a Work and Holiday visa made by item [179] of Schedule 1 to the Migration Amendment Regulations 2007 (No. 12).

 

This item will, among other things, apply to visa applications made on or after 15 October 2007, but not finally determined before 21 October 2007 (see regulation 4 above). This will ensure that such applicants will be required to sign the values statement, which was the intention of the Migration Amendment Regulations 2007 (No. 12).

Schedule 3 – Amendments relating to Work and Holiday visas

Item [1] – Subitem 1224A(1)

This item substitutes subitem 1224A(1) in Schedule 1 to the Principal Regulations with new subitem 1224A(1).

New paragraph 1224(1)(a) provides that an applicant who is in a class of persons specified in an instrument in writing can make an application for a Class US (Work and Holiday)(Temporary) visa using either existing paper application form 1208 or new internet application form 1208E(internet). New paragraph 1224(1)(b) provides that all other applicants must continue to use paper form 1208.

The intention is that persons who hold valid passports from the USA will be specified as a class of persons in an instrument in writing for the purposes of new paragraph 1224A(1)(a). This will give effect to an arrangement with the USA that such persons can make either internet or paper applications for a Work and Holiday visa. The amendment provides for the relevant classes of persons to be specified in an instrument in writing rather than in the Regulations as this will provide the flexibility to specify persons from other countries with whom Australia enters into a similar arrangement in the future.

Item [2] – Paragraph 1224A(3)(aa)

This item omits the word “Application” and inserts the words “Subject to paragraph (ab), application using form 1208” in Paragraph 1224A(3)(aa) of Schedule 1 to the Principal Regulations.

Paragraph 1224A(3)(aa) provides that an application from a person who holds a valid passport from a particular foreign country is to be posted to an address specified in an instrument in writing for that country. The effect of this amendment is to limit the application of paragraph 1224A(3)(aa) to paper applications using form 1208, and provide that the provision is subject to paragraph (ab) (see item [3] below for commentary on new paragraph 1224A(3)(ab)).

The reason that paragraph 1224A(aa) will only apply to applications made using form 1208 is because internet applications cannot be made at a specified address. Internet applications are made in accordance with regulation 2.10C (see the commentary on the note in item [3] below).

Item [3] – After paragraph 1224A(3)(aa)

This item inserts paragraph (ab) after paragraph 1224A(3)(aa) in Schedule 1 to the Principal Regulations and inserts a note which explains when an internet application is made under regulation 2.10C of the Principal Regulations.

New paragraph (ab) provides that an application using form 1208 by a person in a class of persons specified in an instrument in writing can be made in any foreign country. This item has been inserted to give effect to the arrangement with the USA that a person who holds a valid passport from the USA may make a paper application for a Work and Holiday visa using form 1208 in any foreign country, rather than at a specified address. The amendment provides for the relevant classes of persons to be specified in an instrument in writing rather than in the Principal Regulations as this provides the flexibility to change the class of persons who can make a paper application in any foreign country, should the arrangement with another country allow for this in the future.

Item [4] – Schedule 2, clause 462.612

This item substitutes clause 462.612 in Part 462 (Subclass 462 (Work and Holiday) (Temporary)) of Schedule 2 to the Principal Regulations.

This item inserts conditions 8503 and 8540 into clause 462.612. Previously, the effect of clauses 462.613 and 462.614 was that only condition 8540 could be imposed on the first or second Work and Holiday visa granted to a person and only condition 8503 could be imposed on the third Work and Holiday visa granted to a person. This amendment provides the discretion to impose either condition 8540 or 8503 on any Work and Holiday visa granted to a person. The intention is that one of these conditions will only be imposed on a visa where this is consistent with the arrangement with the visa holder’s country.

In addition, this item also has the effect that only a human delegate may impose of any of the discretionary conditions listed in clause 462.612 of Schedule 2 to the Principal Regulations on a visa. It is not appropriate for a computer program to impose discretionary conditions on a Work and Holiday visa.

Item [5] – Schedule 2, clauses 462.613 and 462.614

This item omits clauses 462.613 and 462.614 from Part 462 (Subclass 462 (Work and Holiday)(Temporary)) of Schedule 2 to the Principal Regulations (see item 4 above for an explanation of the effect of these clauses).

These clauses are no longer required due to the insertion of conditions 8503 and 8540 into clause 462.612 (see item 4 above).

Schedule 4 – Amendments relating to the removal of the Assurance of Support requirement

Item [1] – Schedule 2, clause 116.225

This item omits clause 116.225 from Schedule 2 to the Principal Regulations. Clause 116.225 makes it a primary criterion for grant of a Subclass 116 (Carer) visa that the Minister is satisfied, at the time of decision, that an Assurance of Support in relation to the applicant has been accepted by the Secretary of the Department of Families, Community Services and Indigenous Affairs.

An Assurance of Support is an undertaking by a person, not necessarily the sponsor, to repay to Centrelink certain recoverable benefits paid during the first two years after grant of the relevant visa or entry to Australia as a holder of the visa, whichever happens later.

Removal of the Assurance of Support requirement from Subclass 116 was a recommendation arising from the 2006 multi-agency review of the Assurance of Support Scheme.

Item [2] – Schedule 2, clause 116.325

This item omits clause 116.325 from Schedule 2 to the Principal Regulations. Clause 116.325 makes it a secondary criterion for grant of a Subclass 116 (Carer) visa that the Minister is satisfied, at the time of decision, that the Assurance of Support given for the primary applicant includes the secondary applicant and has been accepted by the Secretary of the Department of Families, Community Services and Indigenous Affairs, or that another Assurance of Support in relation to the secondary applicant has been accepted by the Secretary of the Department of Family, Community Services and Indigenous Affairs.

An Assurance of Support is an undertaking by a person, not necessarily the sponsor, to repay to Centrelink certain recoverable benefits paid during the first two years after grant of the relevant visa or entry to Australia as a holder of the visa, whichever happens later.

Removal of the Assurance of Support requirement from Subclass 116 was a recommendation arising from the 2006 multi-agency review of the Assurance of Support Scheme.

Item [3] – Schedule 2, clause 836.222

This item omits clause 836.222 from Schedule 2 to the Principal Regulations. Clause 836.222 makes it a primary criterion for grant of a Subclass 836 (Carer) visa that the Minister is satisfied, at the time of decision, that an Assurance of Support in relation to the applicant has been accepted by the Secretary of the Department of Families, Community Services and Indigenous Affairs.

An Assurance of Support is an undertaking by a person, not necessarily the sponsor, to repay to Centrelink certain recoverable benefits paid during the first two years after grant of the relevant visa or entry to Australia as a holder of the visa, whichever happens later.

Removal of the Assurance of Support requirement from Subclass 836 was a recommendation arising from the 2006 multi-agency review of the Assurance of Support Scheme.

Item [4] – Schedule 2, clause 836.323

This item omits clause 836.323 from Schedule 2 to the Principal Regulations. Clause 836.323 makes it a secondary criterion for grant of a Subclass 836 (Carer) visa that the Minister is satisfied, at the time of decision, that the Assurance of Support given for the primary applicant includes the secondary applicant and has been accepted by the Secretary of the Department of Families, Community Services and Indigenous Affairs, or that another Assurance of Support in relation to the secondary applicant has been accepted by the Secretary of the Department of Families, Community Services and Indigenous Affairs.

An Assurance of Support is an undertaking by a person, not necessarily the sponsor, to repay to Centrelink certain recoverable benefits paid during the first two years after grant of the relevant visa or entry to Australia as a holder of the visa, whichever happens later.

Removal of the Assurance of Support requirement from Subclass 836 was a recommendation arising from the 2006 multi-agency review of the Assurance of Support Scheme.


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