MIGRATION AMENDMENT REGULATION 2012 (NO. 8) (SLI NO 301 OF 2012) EXPLANATORY STATEMENT

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 Regulation is to amend the Migration Regulations 1994 ('the Principal Regulations') to strengthen and improve immigration policy. In particular, the Regulation amends the Principal Regulations to:

* amend the 'when visa is in effect' provisions for the following bridging visas to provide certainty about when a bridging visa ceases to be in effect following notification by the review authority that the merits review application was not made in accordance with the law governing the making of applications to that review authority:

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement's overall assessment is that the measures in the Regulation are compatible with human rights as it does not raise any human rights issues. A copy of the Statement is at Attachment B.

The Office of Best Practice Regulation ('the OBPR') has been consulted in relation to amendments made by the Regulation. The OBPR considers that the amendments in Schedules 1 and 3 are machinery of government in nature and that the amendments in Schedule 2 have a minor impact on business or the not-to-profit sector. The OBPR advises that no further analysis (in the form of a Regulation Impact Statement) is required for this Regulation. The OBPR consultation references are:

In relation to the amendments made by Schedule 1 to the Regulation, as the cessation of a bridging visa held on the basis of a merits review application, or a substantive visa application that is not finally determined, can be linked to the notification of a review authority, the Department of Immigration and Citizenship ('the Department') has consulted with the Migration Review Tribunal and the Refugee Review Tribunal ('the MRT/RRT') in relation to these amendments. The MRT/RRT did not express any concerns on the amendments made by the Regulation.

In relation to the amendments made by Schedule 2 to the Regulation, no further consultation was undertaken by the Department as the Regulation provides for the adjustment to Visa Application Charges (VACs) announced by the Government in the MYEFO statement on 22 October 2012. The amendments made by Schedule 2 to the Principal Regulations are minor or machinery in nature and do not substantially alter existing arrangements.

In relation to the amendments made by Schedule 3 to the Regulations, the Department chairs an Interdepartmental Committee (IDC) on Biometrics in Offshore Visa Processing which meets periodically. Other members of the IDC are the Australian Customs and Border Protection Service, Attorney-General's Department, Australian Federal Police, Department of Foreign Affairs and Trade, and Department of Prime Minister and Cabinet. Offshore mobile biometrics collection capability was a specific agenda item at meetings of the IDC held in October 2011 and February 2012, and its expansion was discussed and supported by IDC members. At the meeting in February, IDC members were given a demonstration of the Department's mobile biometrics collection units.

No further consultation outside the IDC was undertaken, as agencies with an interest in offshore biometrics collection are already represented on and provided input through the IDC. Outside of the IDC, no external stakeholders, apart from offshore visa applicants, can be easily identified and so broader consultation was not possible. In any case, the amendment is of a minor nature, in practice, because it reflects existing government policy and practice to collect personal identifiers from visa applicants outside of Australia.

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

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

ATTACHMENT C

Details of the Migration Amendment Regulation 2012 (No. 8)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Migration Amendment Regulation 2012 (No. 8).

Section 2 - Commencement

This section provides that the Regulation commences on 1 January 2013.

Section 3 - Amendment of Migration Regulations 1994

This section provides that Schedules 1 to 4 to the Regulation amends the Migration Regulations 1994 ('the Principal Regulations').

Schedule 1 - Amendments relating to bridging visas

Items [1] to [4] - Schedule 2, subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii)

These items substitute:

* subparagraph 010.511(b)(iii) in Part 010 (Bridging A) in Schedule 2 in the Regulations;

* subparagraph 020.511(b)(iii) in Part 020 (Bridging B) in Schedule 2 in the Regulations;

* subparagraph 030.511(b)(iii) in Part 030 (Bridging C) in Schedule 2 in the Regulations; and

* subparagraph 050.511(b)(iii) in Part 050 (Bridging (General)) in Schedule 2 in the Regulations.

Among other things, Part 010 provides for when a Subclass 010 (Bridging A) visa ('BVA') ceases to be in effect. Similarly, Part 020 provides for when a Subclass 020 (Bridging B) visa ('BVB') ceases to be in effect, Part 030 provides for when a subclass 030 (Bridging C) visa ('BVC') ceases to be in effect and Part 050 provides for when a Subclass 050 (Bridging (General)) visa ('BVE 050') ceases to be in effect.

One of the bases on which a person may be granted a BVA, BVB, BVC or BVE 050 is that the person has made an application for a substantive visa that has not been finally determined (that is, the decision in respect of the application is still subject to review by the Migration Review Tribunal ('the MRT') or the Refugee Review Tribunal ('the RRT') or the time period within which a person may apply for review has not ended). A substantive visa is defined in subsection 5(1) of the Migration Act 1958 ('the Act') as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. A person can be granted a bridging visa on the basis of having made an application for a substantive visa so that, if they hold no other substantive visa, they will hold that bridging visa and be a lawful non-citizen in Australia, pending a decision on the substantive visa they applied for.

A non-citizen in Australia without a visa that is in effect is an unlawful non-citizen and must be taken into immigration detention.

Subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii) previously provided for when a BVA, BVB, BVC or BVE 050 ceases to be in effect where it has been granted on the basis of the visa holder having applied for a substantive visa and that application had not been finally determined. Those subparagraphs previously provided that those bridging visas permit the holder to stay in Australia until:

* if the substantive visa application is refused and the holder applies for merits review of that refusal - 28 days after notification of the decision of:

o the review authority; or

o if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies - 28 days after notification of the decision of that other review authority.

Accordingly, under the previous provisions, where the holder of a bridging visa applied for merits review of a decision to refuse a substantive visa application, the bridging visa ceases 28 days after the review authority notifies the visa holder of its decision. However, if the visa holder can apply to a second review authority for review of the first review authority's decision, and so applies, then the bridging visa ceases 28 days after notification of the decision of the second review authority.

The term 'review authority' is defined in regulation 1.03 of the Principal Regulations to mean the MRT and, for BVAs, BVBs, BVCs, Bridging D (Class WD) visas and Bridging E (Class WE) visas, includes the RRT.

The substituted subparagraphs 010.511(b)(iii), 020.511(b)(iii), 030.511(b)(iii) and 050.511(b)(iii) provide that, for bridging visas granted on the basis of the visa holder having applied for a substantive visa that was refused, and the holder applies, or purports to apply, for merits review of that refusal, the visa holder is permitted to remain in Australia until:

* 28 days after notification by the review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

* if the holder has the right to apply to another review authority for merits review of the decision of the review authority and so applies, or purports to apply - 28 days after notification by the other review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

The new subparagraphs substantially replicate the previous subparagraphs but also explicitly provide for a bridging visa to cease to be in effect where the holder purports to apply for merits review. Under the subparagraphs, where a bridging visa holder applies for review, but the review application was found by the relevant review authority to not be made in accordance with the law governing the making of merits review applications to that review authority, the bridging visa will cease 28 days after the notification by the review authority that the application was not made in accordance with the law governing the making of applications to that review authority.

Similarly, if the holder purports to seeks review of the decision of the first review authority with a second review authority, the bridging visa will cease 28 days after notification by the second review authority that the review application was not lawfully made.

The effect of these amendments is that, where the holder of a bridging visa has made an application for merits review of the decision to refuse his/her substantive visa application but the application was found by the review authority not to comply with the law governing the making of applications to that review authority, the bridging visa ceases to be in effect 28 days after the review authority notified the visa holder that the application was not made in accordance with the law governing the making of review applications to that review authority.

The purpose of the amendments is to clarify and reinforce the Department's long standing position about when a bridging visa ceases to be in effect where the applicant seeks review of a decision to refuse an application for a substantive visa. The Department's position is that the current provisions providing for such a bridging visa to cease apply regardless of whether the review application was made in accordance with the law governing the making of applications to that review authority. Accordingly, the amendments provide certainty about when a bridging visa ceases by making it clear that where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority.

The amendments continue to provide that a bridging visa granted on this basis allows the visa holder to remain in Australia until 28 days after notification of the decision by the relevant review authority.

Items [5], [7], [9], [11] and [13] - Schedule 2, clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB

These items amend clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB in Part 050 of Schedule 2 to the Principal Regulations to insert ', or has purported to apply,' after 'has applied'.

Previously, clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB provide for the cessation of a BVE 050 held by a non-citizen who has applied for merits review of the following respective matters (collectively 'non-refusal event'):

* for clause 050.511D, a decision under the Australian Citizenship Act 1948 or the Australian Citizenship Act 2007;

* for clauses 050.513, 050.514 and 050.514AB, the cancellation of visas; and

* for clause 050.513B, a decision under section 137L of the Act not to revoke the cancellation of a visa.

The amended clauses 050.511D, 050.513, 050.513B, 050.514 and 050.514AB substantially replicate the previous clauses but also explicitly provides for a BVE 050 held by a non-citizen who has applied, or purported to apply, for merits review of a non-refusal event to cease to be in effect.

The amendments will have the effect of explicitly providing that those provisions about when a BVE 050 ceases to be in effect also apply in circumstances where the holder of a BVE 050 purported to apply for merits review of a non-refusal event.

The purpose of the amendments is to clarify and reinforce the Department's long standing position that the cessation events applicable to a bridging visa held on the basis of an application for merits review apply where the visa holder purports to apply for merits review.

Items [6], [8], [10], [12] and [14] - Schedule 2, subparagraph 050.511D(b)(i) paragraphs 050.513(a), 050.513B(a), 050.514(a) and 050.514AB(a)

These items substitute subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a), 050.514(a) and 050.514AB(a) in Part 050 in Schedule 2 to the Principal Regulations.

Previously, a BVE 050 granted to a non-citizen who has applied for merits review of a non-refusal event permits the holder to remain in Australia until 28 days after:

* the day the non-citizen is notified of the merits review decision, pursuant to subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a) and 050.514(a); or

* the person whose visa was cancelled under section 137J of the Act is notified of the review decision, pursuant to subparagraph 050.514AB(a).

The new subparagraph 050.511D(b)(i) and paragraphs 050.513(a), 050.513B(a) and 050.514(a) provide that the BVE 050 permits the visa holder to remain in Australia until:

* 28 days after notification by the review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

The new subparagraph 050.514AB(a) provides that the BVE 050 permits the visa holder to remain in Australia until:

* 28 days after the person whose visa was cancelled under section 137J of the Act is notified by the review authority:

o of its decision of on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

The amendments substantially replicate the previous provisions but also explicitly provide for a bridging visa held on the basis of a purported application for merits review of a non-refusal event to cease to be in effect. Under the subparagraphs, where a bridging visa holder applies for merits review of a non-refusal event, but the review application was found by the relevant authority to not be made in accordance with the law governing the making of merits review applications to that authority, the bridging visa ceases 28 days after the review authority notifies the visa holder that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

These amendments complement the amendments in items [5], [7], [9], [11] and [13] and their purpose is to clarify and reinforce the Department's long standing position that, where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority. The amendment provides certainty about when bridging visas cease to be in effect.

Items [15] and [16] - Schedule 2, paragraphs 051.511(b) and 051.513(1)(b)

These items substitute paragraphs 051.511(b) and 051.513(1)(b) of Part 051 of Schedule 2 to the Principal Regulations. Among other things, Part 051 provides for when a Subclass 051 (Bridging (Protection Visa Applicant)) visa (BVE 051) ceases to be in effect.

One basis on which a non-citizen may be granted a BVE 051 is that the non-citizen has made an application for a Protection visa that has not been finally determined.

Previous paragraph 051.511(b) provided that a BVE 051 granted on the basis of an applicant having made an application for a Protection visa permits the visa holder to remain in Australia until:

* if the application is refused and the holder applies for merits review of that decision - 28 days after notification of the decision of the final review authority appealed to.

The new paragraph 051.511(b) provides that if the holder of a BVE 051 applies, or purports to apply, for merits review of a decision to refuse the Protection visa application, the BVE 051 permits the holder to remain in Australia until:

* 28 days after notification by the review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

* if the holder has the right to apply to another review authority or merits review of that decision of the review authority and so applies, or purports to apply - 28 days after notification by the other review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

Another basis on which a non-citizen may be granted a BVE 051 is that the non-citizen was taken to have been granted a BVE 051 by operation of section 75 of the Act and that was not applied for on the basis of the non-citizen seeking judicial review. Section 75 of the Act provides that a bridging visa is taken to have been granted to an eligible non-citizen in immigration detention who has made an application for a bridging visa of a prescribed class and the Minister had not decided after a prescribed period to grant or refuse to grant that bridging visa.

The term 'eligible non-citizen' is defined in subsection 72(1) of the Act and defines certain cohorts of non-citizens who may apply for, and be granted, a BVE 050 or BVE 051.

Previous paragraph 051.513(1)(b) provides that, for a BVE 051 granted on the grounds outlined in the paragraph above, the BVE 051 permits the holder to remain in Australia until:

* if the Protection visa application is refused and the holder applies for merits review of that decision - 28 days after notification of the decision of the final review authority appealed to.

The new paragraph 051.513(1)(b) provides that if the holder of a BVE 051 applies, or purports to apply, for merits review of a decision to refuse the Protection visa application, the BVE 051 permits the holder to remain in Australia until:

* 28 days after notification by the review authority:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

The amendments substantially replicate the substituted paragraphs but also explicitly provide for a BVE 051 held on the basis of a purported application for merits review of a decision to refuse the Protection visa application to cease to be in effect. Under the subparagraphs, where the holder of a BVE 051 applies for review of the refusal decision, but the review application was found by the relevant authority to not be made in accordance with the law governing the making of merits review applications to that authority, the BVE 051 ceases 28 days after the review authority notifies the visa holder that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

In addition, the new paragraphs 051.511(b) and 051.513(1)(b) provide for a
BVE 051 to cease in circumstances where the visa holder can apply to a second review authority for review of the first review authority's decision, and so applies or purports to apply, for review of the first review authority's decision. A bridging visa held in these circumstances ceases 28 days after notification by the second review authority of its decision, or that the review application was not made in accordance with the law governing the making of applications to that review authority.

The purpose of the amendments is to clarify and reinforce the Department's long standing position that where a bridging visa holder purports to apply for merits review, the bridging visa ceases 28 days after notification by the review authority that it cannot review the matter because the review application was not made in accordance with the law governing the making of applications to the review authority. The amendment provides certainty about when a BVE 051 ceases to be in effect.

Schedule 2 - Amendments relating to Visa Application Charges

Item [1] to [7] - Schedule 1, subparagraphs 1124B(2)(a)(vii) and1129(2)(a)(ii); paragraph 1215(2)(a); subparagraph 1223A(2)(a)(iii), paragraph 1224A(2)(a); subitem 1225(2); subparagraph 1229(2)(a)(i)

Items [1] and [2] amend subparagraphs 1124B(2)(a)(vii) and 1129(2)(a)(ii) of Part 1 of Schedule 1 to the Principal Regulations to adjust the Visa Application Charge (VAC) for two classes of Permanent visas by substituting the amended visa application charges.

Items [3] to [7] amend paragraph 1215(2)(a); subparagraph 1223A(2)(a)(iii), paragraph 1224A(2)(a), subitem 1225(2) and subparagraph 1229(2)(a)(i) of Part 2 of Schedule 1 to the Principal Regulations to adjust the VAC for five subclasses of Temporary visa by substituting the amended visa application charges.

The provisions to be amended and the amendments are set out in this table:

*Provision*	*Current VAC*	*Amended VAC*
In Part 1 of Schedule 1 of the Regulations
subparagraph 1124B(2)(a)(vii)	$3,060	$3,975
subparagraph 1129(2)(a)(ii)	$2,060	$2,680
In Part 2 of Schedule 1 of the Regulations
paragraph 1215(2)(a)	$2,060	$2,680
subparagraph 1223A(2)(a)(iii)	$350	$455
paragraph 1224A(2)(a)	$280	$365
subitem 1225(2)	$280	$365
subparagraph 1229(2)(a)(i)	$315	$1,250

On 22 October 2012 the Government released its Mid-Year Economic and Fiscal Outlook (MYEFO) for the 2012-2013 financial year. In the MYEFO, the Government announced an increase in the VAC for skilled graduate visas by 300% and for partners, working holiday makers and temporary overseas worker visas by 30%. This measure is estimated to increase revenue by $520.5 million over four years.

The purpose of this amendment is to give effect to the Government's announcement. All increases are rounded to a multiple of $5.00 according to the following methodology:

if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;
in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The amount of the increase in these items does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

Schedule 3 - Amendments relating to biometric assessment

Item [1] - Paragraph 2.04(3)(b)

This item substitutes paragraph 2.04(3)(b) in Division 2.1 of Part 2 to the Principal Regulations.

Background Legislation

Regulation 2.04 of the Principal Regulations prescribes circumstances in which a visa may be granted pursuant to section 40 of the Act.

Subsection 40(1) provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

Subsection 40(3) relevantly provides that, without limiting subsection 40(1), if prescribed circumstances exist and the Minister has not waived the operation of subsection 40(3), the circumstances under which a visa must be granted may be or may include that the visa applicant has complied with any requirement of an officer to provide one or more personal identifiers in relation to the visa application.

Subsection 40(5), in effect, provides that the requirement to provide a personal identifier by way of an identification test carried out by an authorised officer does not apply in prescribed circumstances.

It should be noted that the term 'prescribed circumstance' relevantly refers here to those circumstances prescribed under paragraph 40(3)(a) or subsection 40(5) of the Act. The term 'circumstance', used in subsection 40(1) of the Act, relevantly refers to a factual situation that must exist in order for a visa to be granted. These circumstances are provided in those provisions in Schedule 2 to the Principal Regulations that are relevant to each visa subclass.

Previously, subregulation 2.04(3), in effect, provided that, for paragraph 40(3)(a) and subsection 40(5) of the Act, a prescribed circumstance is that, where a visa applicant is outside of Australia at the time they apply for the visa, the visa applicant's personal identifiers mentioned in subregulation 2.04(6) are provided at a place specified by the Minister in an instrument in writing for this paragraph.

The personal identifiers mentioned in subregulation 2.04(6) are:

fingerprints of the applicant (including those taken using paper and ink or digital livescanning technologies); and

a photograph or other image of the applicant's face and shoulders.

Proposed Amendment

Paragraph 2.04(3)(b) now provides that, for paragraph 40(3)(a) and subsection 40(5) of the Act, a prescribed circumstance is that, where a visa applicant is outside Australia at the time they apply for a visa:

the personal identifiers are provided:

if the person has been required, by an officer, to provide a personal identifier:

to an officer who is located outside Australia; or

to a person in a class of persons specified by the Minister in an instrument in writing; or

in any other case--at a place specified by the Minister in an instrument in writing.

The amendment expands the scope of what is a prescribed circumstance for the purposes of paragraph 40(3)(a) and subsection 40(5) of the Act. Previously, the circumstance prescribed under those provisions was just that a visa applicant who is outside Australia at the time they apply for a visa has provided a personal identifier at a place specified by the Minister in an instrument in writing. The amendment provides that those visa applicants may also provide those personal identifiers to an officer located outside Australia or to a person in a class of persons specified by the Minister in an instrument in writing.

The word 'officer' is defined in subsection 5(1) of the Act to relevantly include an officer of the Department (currently the Department of Immigration and Citizenship) and any person included in a class of persons authorised by the Minister in writing to be an officer for purposes of the Act. Currently, the Minister has authorised, among others, certain employees engaged to work at Australian diplomatic posts to be officers under the Act.

The amendment also includes the provision of personal identifiers to a person in a class of persons specified by the Minister in writing for proposed sub-subparagraph 2.04(3)(b)(i)(B). This alternative is included in case the Australian Government enters into arrangements with other organisations or bodies to collect personal identifiers from visa applicants outside Australia for the purpose of applying for an Australian visa.

Collecting Personal Identifiers

Under paragraph 40(3)(a) of the Act, the existence of a prescribed circumstance relevantly means that the circumstances for the grant of a visa may be, or may include that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for a visa. Paragraph 2.04(1)(b) relevantly imposes compliance with any such requirement as a circumstance for the grant of a visa to a visa applicant who is outside Australia at the time they applied for a visa.

The effect of these provisions is that, where the visa applicant outside Australia is required to provide a personal identifier in those prescribed circumstances (i.e. currently only at a place specified by the Minister) and, where the prescribed circumstances exist, they will be refused the grant of a visa if they do not provide the required personal identifiers.

There are a range of situations where visa applicants cannot reasonably be expected to attend a place specified by the Minister in writing. This would include situations such as people in refugee camps applying for humanitarian visas to live in Australia. Previously, officers attending refugee camps could only request, rather than require, the provision of a visa applicant's personal identifiers. If a visa applicant in that situation did not provide the requested personal identifiers, it would not prevent the grant of their visa.

The benefits of collecting personal identifiers include better protecting visa applicants from identity fraud, making travel to Australia safer, strengthening Australia's border security, and improving national security. The amendment would supplement existing provisions by enabling the provision of personal identifiers, when required by an officer, to an officer or a person in a class of persons specified by the Minister in an instrument in writing.

Under subsection 40(5), the existence of a prescribed circumstance means that the requirement in subsection 40(4) of the Act to collect personal identifiers by means of an identification test carried out by an authorised officer does not apply. Identification tests carried out by authorised officers are not used in the overseas context because there is a need to be flexible in the way personal identifiers are collected. For example, in the majority of cases personal identifiers are collected by staff at visa application centres operated by service delivery partners, and such staff cannot be authorised to carry out identification tests because they are not 'officers' for the purposes of the Act.

Item [2] - Subparagraph 2.08AC(4)(a)(ii)

This item substitutes subparagraph 2.08AC(4)(a)(ii) in Division 2.2 of Part 2 to the Principal Regulations.

Background Legislation

Regulation 2.08AC of the Principal Regulations prescribes the circumstances in which a visa may be granted pursuant to section 46 of the Act. Previously, subsection 2.08AC(4) provided that, for subsection 46(2C) of the Act:

(a) a circumstance is that:

(i) the application:

(A) is not an application for a bridging visa that is made by an applicant who is outside Australia at the time of the application; and

(B) is not an application for a Witness Protection (Trafficking) (Permanent) (Class DH) visa that is made by an applicant who is outside Australia at the time of application; and

(ii) the personal identifier mentioned in paragraph (b) is to be provided at a place specified by the Minister in an instrument in writing for this subparagraph; and

(b) a personal identifier is:

(i) fingerprints of a person (including those taken using paper and ink or digital livescanning technologies); or

(ii) a photograph or other image of the applicant's face and shoulders.

Proposed Amendment

Subparagraph 2.08AC(4)(a)(ii) now provides that, for subsection 46(2C) of the Act, a circumstance includes:

the personal identifier mentioned in paragraph 2.08AC(4)(b) is to be provided:

if the person has been required, by an officer, to provide a personal identifier:

to an officer who is located outside Australia; or

to a person in a class of persons specified by the Minister in an instrument in writing; and

in any other case--to a person in a class of persons specified by the Minister in an instrument in writing.

The amendment expands the scope of what is a prescribed circumstance for the purpose of subsection 46(2C) of the Act. Previously, the circumstance prescribed under that subsection is just that a person who is outside Australia at the time they apply for a visa and who has not applied for certain visas has provided a personal identifier at a place specified by the Minister in an instrument in writing. The amendment provides that those visa applicants may also provide those personal identifiers to an officer located outside Australia or to a person in a class of persons specified by the Minister in an instrument in writing.

The amendment would also include the provision of personal identifiers to a person in a class of persons specified by the Minister in writing for proposed sub-subparagraph 2.08AC(4)(a)(ii)(B). This alternative is included in case the Australian Government enters into arrangements with other organisations or bodies to collect personal identifiers from visa applicants outside Australia for the purpose of applying for an Australian visa.

Collecting Personal Identifiers

The effect of subsection 46(2A) of the Act is that, if a visa applicant is required to provide personal identifiers and they do not, their visa application will be invalid. An invalid visa application cannot lead to the grant of a visa (subsections 47(3) and 65(1) of the Act).

Subsections 46(2B) and 46(2C) operate together such that, where a visa applicant has been required under subsection 46(2A) to provide personal identifiers and where the circumstances prescribed under subsection 46(2C) exist, a visa applicant's personal identifiers are not required to be provided by means of an identification test carried out by an authorised officer in order for their visa application to be valid. Identification tests carried out by authorised officers are not used in the overseas context because there is a need to be flexible in the way personal identifiers are collected. For example, in the majority of cases, personal identifiers are collected by staff at visa application centres operated by service delivery partners, and such staff cannot be authorised to carry out identification tests because they are not 'officers' for the purposes of the Act.

Previously, the circumstance prescribed under subsection 2.08AC(4) turned on the personal identifiers only being provided at a place specified by the Minister in writing. There are a range of situations where visa applicants cannot reasonably be expected to attend at a place specified by the Minister in writing. This would include situations such as people in refugee camps applying for humanitarian visas to live in Australia. Previously, officers attending refugee camps could only request, rather than require, the provision of a visa applicant's personal identifiers. If a visa applicant in that situation did not provide the requested personal identifiers, their visa application would not be invalid.

Schedule 4 - Amendment relating to transitional arrangements

Item [1] - Schedule 13, after Part 8

This item inserts a new Part 9 after Part 8 of Schedule 13 to the Principal Regulations to deal with transitional arrangements in respect of amendments made by this Regulation.

The heading of new Part 9 is 'Amendments made by Migration Amendment Regulation 2012 (No. 8)'.

Subitem 901(1) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation apply in relation to a bridging visa to which the following apply:

* the visa is held on the basis of an application, or a purported application, for merits review; and

* on 1 January 2013, the final review authority in relation to that merits review had not yet notified the holder of the bridging visa:

o of its decision on the merits review; or

o that the application for merits review was not made in accordance with the law governing the making of applications to that review authority.

Subitem 901(2) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation also apply in relation to a bridging visa that is held on the basis of an application, or a purported application, for merits review made on or after 1 January 2013.

Subitem 901(3) provides that the amendments to the Principal Regulations made by Schedule 1 to the Regulation apply in relation to a bridging visa:

* that is held on the basis of an application for a substantive visa:

o made, but not finally determined, before 1 January 2013; or

o made on or after 1 January 2013; and

* to which subitems 901(1) and (2) are not applicable.

Subitem 901(4) provides that the amendments to the Principal Regulations made by Schedule 2 to the Regulation apply in relation to a matter for which an obligation to pay a charge is incurred on or after 1 January 2013.

Subitem 901(5) provides that the amendments made by Schedule 3 apply to an application for a visa:

* made, but not finally determined, before 1 January 2013; or

* made on or after 1 January 2013.

The purpose of these amendments is to clarify to whom the amendments in this Regulation applies.

Commonwealth Numbered Regulations - Explanatory Statements