Commonwealth Numbered Regulations - Explanatory Statements
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MIGRATION LEGISLATION AMENDMENT (2018 MEASURES NO. 1) REGULATIONS 2018 (F2018L00463)
EXPLANATORY STATEMENT
Migration Act 1958
Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act relevantly provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
In addition, regulations may be made pursuant to the provisions of the Migration Act listed in Attachment A.
The Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018 (the Regulations) amend the Migrations Regulations 1994 (the Migration Regulations) to strengthen and update immigration policy.
In particular, the Regulations amend the Migration Regulations to:
* Allow visa applications made by members of the family unit of a Subclass 500 (Student) visa (Student visa) applicant to be combined in circumstances where the applicant is applying on the basis that they meet the secondary criteria for the visa. In practice, this change means that the family unit will pay a lower total amount in visa application charges because it removes the requirement for each secondary applicant to make a separate visa application in circumstances where the primary applicant has already been granted a Student visa.
* Allow holders and certain former holders of a Subclass 790 (Safe Haven Enterprise) visa, who have satisfied any prescribed employment, educational or social security benefits requirements, to be granted a Subclass 010 (Bridging A) visa, or a Subclass 030 (Bridging C) visaa. This ensures that these holders can remain in Australia lawfully while the Department decides their application for one of the substantive visas prescribed under subregulation 2.06AAB(1) of the Migration Regulations.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the Regulations. The OBPR considers that the following amendments have minor regulatory impacts, and no further analysis in the form of a Regulation Impact Statement is required.
The OBPR consultation references are as follows:
* 21787 (Schedule 1)
* 22375 (Schedule 2)
In relation to both Schedules to the Regulations, no consultation was considered necessary because the amendments do not substantially alter existing arrangements. This accords with subsection 17(1) of the Legislation Act 2003 (the Legislation Act) which requires consultations to be appropriate and reasonably practicable.
A Statement of Compatibility with Human Rights (the Statement) has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment B.
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
Details of the Regulations are set out in Attachment C.
The Regulations are a legislative instrument for the purpose of the Legislation Act.
The Regulations commence on 13 April 2018. Where relevant, the Regulations apply only to new visa applications. They do not apply to applications that have already been made, but not yet decided, at the time the Regulations commence.
ATTACHMENT A
AUTHORISING PROVISIONS
Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
In addition, the following provisions of the Migration Act are relevant:
* subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
* subsection 41(1), which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions. Subsection 41(3) provides that in addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;
* subparagraph 46A(1)(b)(ii) of the Act provides that section 46A applies when an unauthorised maritime arrival holds a bridging visa or a temporary protection visa, or a temporary visa of a prescribed class for the purposes of that subparagraph;
* subsection 46A(1A) of the Act provides for circumstances exempting SHEV holders from the operation of subsection 46A(1); and
* 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.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Schedule 1 - Extending circumstances for combined applications for Subclass 500 (Student) visa
Overview
The Schedule allows family members of international students who hold a Subclass 500 (Student) visa (Student visa) to lodge one combined Student visa application to join them in Australia. As a result, only the main applicant in the combined visa application would be required to pay the base application charge (BAC), which is currently $560, and any dependent applicants in the combined application would pay the lesser additional application charge (AAC), which is currently $420 for applicants 18 years and older or $140 for applicants who are less than 18 years of age. Without this amendment, family members who intend to join a Student visa holder in Australia must each make a separate visa application and pay the BAC.
Human rights implications
This Schedule has been considered against each of the seven core international human rights treaties. To the extent that the Disallowable Legislative Instrument applies to persons within Australia's territory and jurisdiction, it positively engages the rights in Article 17 and Article 23 of the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR sets out the prohibition on unlawful and arbitrary interference with the family and Article 23 sets out the right to protection of the family. Schedule 1 supports these rights by making the process of applying for a Student visa easier and less expensive for international students' family members who would like to join the student in Australia.
Conclusion
Schedule 1 is compatible with human rights because it promotes the rights in Articles 17 and 23 of the ICCPR.
Schedule 2 - Bridging visa applications by holders of safe haven enterprise visas etc.
Overview
This Schedule amends the statutory framework in the Migration Regulations 1994 (the Regulations) relating to protection visas. The proposed amendment follows the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and the Migration Amendment (Protection and Other Measures) Act 2015. The technical amendment is to address an omission that could render unlawful current and previous holders of Safe Haven Enterprise visas (SHEV) while they await decisions on subsequent substantive visa applications.
Specifically Schedule 2 amends subregulation 2.06AAB(1) to add Subclass 010 (Bridging A) visa (BVA) and Subclass 030 (Bridging C) visa (BVC) to the list of prescribed visas that Safe Haven Enterprise (Class XE) visa (SHEV) holders, or certain former holders are able to apply for if they meet the SHEV pathway requirements.
The SHEV is a temporary protection visa that is valid for five years. SHEV holders and certain former SHEV holders (and their family members) who have worked (without receiving social security benefits) or studied full time (or a combination of both) in a specified regional area for at least 42 months (not necessarily consecutively) meet the SHEV pathway requirements and can apply for certain visas prescribed in subregulation 2.06AAB(1) of the Regulations.
However, bridging visas are not currently included in the prescribed visa list under this sub-regulation. Therefore, when SHEV holders demonstrate they have met the SHEV pathway requirements to apply for a prescribed substantive visa, they will not automatically also apply for (and cannot be granted) a bridging visa in association with their substantive visa application. This is problematic as the SHEV holder will become unlawful when their SHEV lapses after five years if their subsequent visa application has not yet been finalised.
The amendment to subregulation 2.06AAB(1) adds Bridging A and Bridging C visas and to the prescribed visa list. This ensures SHEV holders who meet the pathway requirements and are able to apply for a substantive visa in Australia, will also be able to apply for an associated bridging visa to keep them lawfully in Australia while their visa application is processed.
Human rights implications
This amendment engages the following rights:
Visa applications by holders of safe haven enterprise visas
The amendment rectifies an omission in the original drafting of subregulation 2.06AAB(1) to allow SHEV holders to remain lawfully in Australia. It does not change the requirements for the SHEV or other prescribed visas or change the way protection claims are assessed. It is technical in nature and does not engage any human rights obligations.
Conclusion
Schedule 2 is compatible with human rights because it is consistent with Australia's human rights obligations and provides a favourable outcome to SHEV holders by enabling them to retain lawful status while their application for a prescribed substantive visa is being processed.
The Hon Peter Dutton MP
Minister for Home Affairs
Minister for Immigration and Border Protection
ATTACHMENT C
Details of the Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018
Section 1 - Name
This section provides that the title of the Regulations is the Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018 (the Regulations).
Section 2 - Commencement
This section provides that the instrument commences on 13 April 2018.
Section 3 - Authority
This section provides that the Regulations are made under the Migration Act 1958 (the Migration Act).
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
The effect of this section is that the Migration Regulations 1994 (the Migration Regulations) are amended as set out in the applicable items in the Schedules to the Regulations.
The purpose of this section is to provide for how the amendments in this Regulation operate.
Schedule 1 - Extending circumstances for combined applications for Subclass 500 (Student) visa
Migration Regulations 1994
Item 1 - Paragraph 1222(3)(e)
This item omits the phrase "seeking to satisfy the primary criteria for the grant of" in this paragraph, and substitutes it with "an applicant for".
The effect of this amendment is to allow members of the family unit of an applicant for a Subclass 500 (Student) visa (Student visa) to make a combined application, regardless of whether the first applicant is seeking to satisfy primary or secondary criteria for this subclass. In practice this means that, where the primary applicant has already been granted a Student visa, secondary applicants can combine their applications rather than being required to lodge separate applications.
Previously, where family members of Student visa holders lodged Student visa applications after the first visa was granted, they were required to lodge separate applications and pay the base application charge of $560.00. The effect of this amendment is that while the first applicant is subject to the same base application charge, each additional applicant is liable only for the lower additional applicant charge of $420.00.
These changes will not apply where two applicants are both members of the family unit of the primary applicant, but neither is the member of the family unit of the other person (for example, a child of the primary applicant is not the member of the family unit of another child of the primary applicant, and they are therefore unable to make combined applications). In these circumstances, applicants will continue to be required to lodge separate applications.
The purpose of this amendment is to allow family members of Student visa holders to make combined applications where they make visa applications after the primary applicant's Student visa has been granted, and to improve administrative efficiency in processing applications.
Item 2 - In the appropriate position in Schedule 13
This item inserts new Part 68 and new clause 6801 into Schedule 13 to the Regulations. New Part 68 of Schedule 13 deals with the amendments made by these amending Regulations, the Migration Legislation Amendment (2018 Measures No. 1) Regulations 2018.
Clause 6801 provides that the amendments made by Schedule 1 apply to an application for a Student visa made on or after 13 April 2018.
Schedule 2 - Visa applications by holders and certain former holders of safe haven enterprise visas
Migration Regulations 1994
Item 1 - Subregulation 2.06AAB(1) (before table item 1)
This item inserts the following visa subclasses in the table at subregulation 2.06AAB(1):
* Subclass 010 (Bridging A); and
* Subclass 030 (Bridging C).
The purpose of this amendment is to allow holders, and certain former holders, of the Subclass 790 (Safe Haven Enterprise) visa to apply for and be granted one of the above bridging visas. The effect of this amendment is to enable this cohort to remain in Australia as a lawful non-citizen while their application for one of the substantive visas specified in this subregulation is decided.
Item 2 - In the appropriate position in Part 68 of Schedule 13
This item inserts new clause 6802 into Schedule 13 to the Regulations. This clause provides that the amendments made by Schedule 2 apply to an application for a visa made on or after 13 April 2018.