EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 232

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2010 (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 the regulations may be made pursuant to the provisions of the Act set out in Attachment A.

The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to make changes in relation to Subclass 417 (Working Holiday) and Subclass 462 (Work and Holiday) visas, remove condition 8205 and correct punctuation errors.

In particular, the Regulations amend the Principal Regulations to:

 

·              prevent a person who has previously been in Australia as the holder of a Subclass 462 (Work and Holiday) visa from applying for a Subclass 417 (Working Holiday) visa (Schedule 1 to the Regulations refers);

·              provide that Subclass 462 (Work and Holiday) visa applicants cannot be accompanied by dependent children (except applicants who are members of a class of persons specified by the Minister in an instrument in writing) (Schedule 1 to the Regulations refers);

·              remove a redundant reference to a repealed provision and make a consequential technical amendment in Schedule 2 to the Principal Regulations (Schedule 1 to the Regulations refers);

·              remove condition 8205 from Schedule 2 and Schedule 8 to the Principal Regulations as it is no longer required to manage the incidence of tuberculosis in Australia (Schedule 2 to the Regulations refers); and

·              make minor technical amendments to correct punctuation errors made in
Migration Amendment Regulations 2010 (No. 6) (Schedule 3 to the Regulations refers).

 

Details of the Regulations are set out in Attachment B.

 

The Regulations commence on 21 August 2010.

 

For Schedules 1, 2 and 3 to the Regulations, the Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklist were used to determine that there was no compliance cost on business or impact on competition.

 

 

For Schedules 1, 2 and 3 to the Regulations, no consultation was conducted in relation to the amendments to the Regulations, as the amendments have no relevant implications for any external agencies or other bodies.

 

The Regulations are 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, the following provisions may apply:

·        section 31 of the Act, which deals with classes of visas, in particular subsection 31(3) of the Act, 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;

·        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; and

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

o       subsection 46(1) of the Act, which provides in part that an application for a visa is valid only if it is for a visa of a class specified in the application and it satisfies the criteria and requirements prescribed under section 46; and

o       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.

 

 

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2010 (No. 7)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2010 (No. 7).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 21 August 2010.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

 

Subregulation 3(1) provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

 

Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to an application for a visa made on or after 21 August 2010.

 

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

 

Subregulation 4(1) provides that the Principal Regulations are amended as set out in Schedule 2.

 

Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa that is:

o       made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 21 August 2010; or

o       made on or after 21 August 2010.

 

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

 

Regulation 5 provides that the Principal Regulations are amended as set out in Schedule 3.

 

Schedule 1 – Amendments relating to working holiday visas

 

Item [1] – Schedule 1, after subclause 1225(3B)

 

This item inserts a new subclause 1225(3C) after subclause 1225(3B) of Part 2 of Schedule 1 to the Principal Regulations.

 

Clause 1225 of Part 2 of Schedule 1 to the Principal Regulations relates to the Working Holiday (Temporary) (Class TZ) visa and subclause 1225(3B) provides that if the applicant is, or has previously been, in Australia as the holder of a working holiday visa:

·        the applicant must not be in immigration clearance; and

·        the application must not be made in immigration clearance; and

 

 

·        the application must be accompanied by a declaration by the applicant that he or she has carried out specified work in regional Australia for a total period of at least three months as the holder of that visa; and

·        the applicant has not previously held more than one working holiday visa in Australia; and

·        the applicant holds a working holiday eligible passport; and

·        if the applicant is in Australia, the applicant must:

o       hold a substantive visa; or

o       have held a substantive visa at any time in the period of 28 days immediately before making the application.

 

New subclause 1225(3C) requires that an applicant for a Working Holiday (Temporary) (Class TZ) visa must not have previously been in Australia as the holder of a Subclass 462 (Work and Holiday) visa.

 

The Principal Regulations did not preclude a person who has previously been in Australia as the holder of a Subclass 462 (Work and Holiday) visa from applying for a Subclass 417 (Working Holiday) visa. The purpose of this amendment is to prevent a person who has previously been in Australia as the holder of a Subclass 462 (Work and Holiday) visa from applying for a Subclass 417 (Working Holiday) visa, and thus ensure that applicants cannot access both visas if they hold passports issued by more than one country.

 

Item [2] – Schedule 2, paragraph 417.221(2)(a)

 

This item omits “paragraphs 417.211(2)(a) and (c)” and inserts “paragraph 417.211(2)(c)” in paragraph 417.221(2)(a) of Part 417 of Schedule 2 to the Principal Regulations.

 

Paragraph 417.221(2)(a) of Part 417 of Schedule 2 to the Principal Regulations provides criteria that are to be satisfied by an applicant at the time of decision for the grant of a Subclass 417 (Working Holiday) visa.

 

This amendment is a technical amendment to remove a redundant provision in paragraph 417.221(2)(a) of Part 417 of Schedule 2 to the Principal Regulations.

 

Item [3] – Schedule 2, subparagraph 462.217(b)(ii)

 

This item substitutes “(ii) personal support for the purposes of a working holiday.” with “(ii) personal support for the purposes of a working holiday; and” in subparagraph 462.217(b)(ii) of Part 462 of Schedule 2 to the Principal Regulations.

 

Subparagraph 462.217(b)(ii) of Part 462 of Schedule 2 to the Principal Regulations provides criteria that are to be satisfied by an applicant at the time of application for the grant of a Subclass 462 (Work and Holiday) visa.

 

This amendment is a technical amendment and is consequential to the amendment that is made at item [4] below.

 

 

Item [4] – Schedule 2, after paragraph 462.217(b)

 

This item inserts a new paragraph 462.217(c) after paragraph 462.217(b) of Part 462 of Schedule 2 to the Principal Regulations.

 

Clause 462.217 of Part 462 of Schedule 2 to the Principal Regulations provides criteria that are to be satisfied by an applicant at the time of application for the grant of a Subclass 462 (Work and Holiday) visa.

 

New paragraph 462.217(c) requires that the applicant will not be accompanied by dependent children during the applicant’s stay in Australia unless the applicant is a member of a class of persons specified by the Minister in an instrument in writing for this paragraph.

 

The purpose of this amendment is to allow the Minister to make an exception to the general rule that an applicant will not be able to be accompanied by dependent children during the applicant’s stay in Australia.

 

Schedule 2 – Amendments relating to visa condition 8205

 

General Notes Items [1] to [14]

 

Items [1] to [14] of Schedule 2 to the Regulations make minor technical amendments to the following provisions in Schedule 2 to the Principal Regulations to remove any reference to condition 8205:

·        clause 459.611;

• clause 459.613;
• clause 459.614;
• clause 470.611;
• clause 675.611;
• clause 675.611A;
• paragraph 676.611(a);
• paragraph 676.613(a);
• clause 679.611;
• clause 685.611;
• clause 685.611A;
• clause 956.611;
• clause 976.611; and
• clause 977.611.

 

The changes are consequential to the amendment that is made at item [15] below.

 

Item [15] – Schedule 8, item 8205

 

This item omits item 8205 of Schedule 8 to the Principal Regulations.

 

 

Item 8205 of Schedule 8 to the Principal Regulations previously provided that if the holder of a visa is at least 11 years of age and:

 

(a) is from a country other than a country that is designated, by Gazette Notice, as a country in relation to which this condition does not apply; and

(b) intends to study in a class-room environment for a period greater than four weeks;

the holder must, before commencing that study, pass a chest X-ray examination carried out by a medical practitioner who is qualified as a radiologist.

 

The World Health Organization has released new data providing details of countries that have a high risk of people suffering from tuberculosis. As a result, it is no longer necessary to impose condition 8205 upon visa holders to appropriately manage the incidence of tuberculosis in Australia.

 

Schedule 3 – Further amendments

Item [1] – Schedule 1, sub-subparagraph 1228(3B)(b)(ii)(F)
Item [2] – Schedule 1, sub-subparagraph 1229(3B)(b)(ii)(F)

Items [1] and [2] omit “cousin.” and insert “cousin;” in sub-subparagraphs 1228(3B)(b)(ii)(F) and 1229(3B)(b)(ii)(F) of Part 2 of Schedule 1 to the Principal Regulations.

The purpose of these amendments is to make a technical amendment to correct a punctuation error in the provisions.