Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1991 NO. 418

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 418

Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs

Migration Act 1958

Migration Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition sections 23 and 33 of the Act enable regulations to be made providing for different classes of visas and entry permits.

The purpose of the proposed Regulations is to:

•       set up a new assurance of support scheme by amending the provisions relating to assurances of support to:

(a)       reduce the term of liability to 2 years, and reduce the number of support items for which liability can be incurred. (An assurance of support is a guarantee by a person that he/she will repay to the Commonwealth and certain other agencies any financial support provided to a person who migrates on the basis that the assuror has undertaken to support the migrant);

(b)       introduce a bond for adults of $3500 or $1500 (dependent on whether the person is the primary applicant or the secondary applicant), where an assurance of support is a mandatory criterion for the grant of a visa or entry permit. The Commonwealth Government will use this bond as the first avenue of debt recovery where certain social security allowances/benefits have been provided to the people assured. When this bond is exhausted the Government will follow normal debt recovery procedures against the assuror;

(c)       make minor changes consequent upon the institution of a health levy payable under the Migration (Health Services) Charges Act 1991 where the provision of an assurance of support is a mandatory requirement;

•       provide for a new business skills migrant entry program by adding two new visa and entry permit classes - business skills and business skills (senior executive). The grant of these visas/entry permits is dependent in part on the applicant passing the business skills points test. Schedule 9 sets out the points to be awarded under this test;

•       extend the operation of visa and entry permits regulations which have a sunset provision of 18 December 1991 - sections 23(5) and 33(5) of the Act provide that, unless a regulation governing the grant of a visa/entry permit indicates to the contrary, the regulation will be taken to be repealed 2 years after it was made. No such contrary provisions were included in the Regulations when they were made on 19 December 1989;

•       make a number of amendments consequential upon amendments made to the Migration Act by the Migration Act Amendment Act 1991 which will come into operation on 26 December 1991;

•       extend the effect of Division 3 (which provides for the grant of certain refugee and humanitarian visas) until 31 March 1992;

•       extend the operation of the Sri Lankan (temporary) and Yugoslav (temporary) entry permits;

•       make amendments to the Migration Regulations following a transfer in functions relating to occupational trainees and students from the Department of Employment, Education and Training to the Department of Immigration, Local Government & Ethnic Affairs to come into effect on 1 January 1992;

•       change the name of the compassionate grounds entry permit to family and other close ties entry permit;

•       restrict the issue of visas in Australia to travel only visas pending the development of policy and procedures to govern the grant of entry visas in Australia;

•       enable the grant of a return visa, class B to a person who is not a business migrant but has established or is taking part in a business and needs to travel outside Australia in the interests of that business; and

•       provide for a number of minor amendments not involving policy changes which are needed to clarify procedures, reflect policy more accurately and correct unintended consequences.

Details of the proposed Regulations are set out in the Attachment. Commencement dates of these Regulations are also given in the Attachment.

Authority:       Sections 23, 33 and 181 of the Migration Act 1958

Cabinet Minute No. 15918 of 29 October 1991

ATTACHMENT

Regulation 1 - Commencement

Regulation 1.1 provides for the bulk of these regulations to come into operation on 18 December 1991.

Regulation 1.2 provides for regulations 41 and 44 which provide for the new assurance of support scheme, to come into operation on 20 December 1991.

Regulation 1.3 provides for regulations 4, 5, 11, 12, 13, 28, 30.2, 31, 32, 33, 34, 35, 36, 37, 38, 39, 43, 46.3, 47 and 48.3 to come into operation on 26 December 1991. These amendments are consequential upon amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 1.4 provides for regulations 18, 21, 22 and 25 to come into operation on 1 January 1992. These amendments are all made following a transfer in functions relating to occupational trainees and students from the Department of Employment, Education and Training to Department of Immigration, Local Government & Ethnic Affairs.

Regulation 1.5 provides for regulations 3, 16, 45.1, 46.2, 48.1 and 49 to come into operation on 17 February 1992. These amendments all relate to the new business migration scheme.

Regulation 2 - Amendment

This regulation provides for the Migration Regulations to be amended as set out in these Regulations.

Regulation 3 - (Interpretation)

This regulation adds definitions of "designated English language course" and "designated industry sector" to regulation 2 of the Migration Regulations. These terms are used in the new Schedule 9 (Business Skills Points Test) inserted by Regulation 49 of these Regulations.

Regulation 4 - Regulation 3 (Interpretation - balance of family test)

This regulation amends Regulation 3 of the Migration Regulations including picking up some of regulation 38 (which is omitted by regulation 11 of these Regulations) as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 5 - New Regulation 8A

This regulation inserts a new regulation 8A into the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

The new regulation 8A (interpretation - prescribed non-citizen) includes those provisions of regulation 39 which are still relevant (regulation 39 of the Migration Regulations is repealed by regulation 12 of these Regulations) and those provisions of section 47 of the Migration Act which we wish to retain (section 47 is omitted by the Migration Act Amendment Act 1991).

Regulation 6 - Regulation 11 (Application for visa outside Australia)

This regulation amends regulation 11 of the Migration Regulations by deleting the words "subject to this Regulation". This amendment is consequential upon the omission of subregulations 11(2) and (3) (by Statutory Rules 342 of 1991) which had limited the lodgement of visa applications in South Africa to certain specific instances.

Regulation 7 - Regulation 17 (Conditions in connection with grant of visas)

This regulation omits paragraphs 17(1)(j) and 17(1)(k) of the Migration Regulations as the entry permits to which these conditions were relevant no longer exist.

Regulation 8 - Regulation 22 (Applications for entry permits)

This regulation omits paragraph 22(2)(c) of the Migration Regulations as the persons referred to in that paragraph are now exempted by instrument under section 106(2) of the Migration Act from the need to hold entry permits.

Regulation 9 - Regulation 28 (Conditions in connection with grant of temporary entry permits)

This regulation omits paragraphs 28(1)(i) and 28(1)(j) of the Migration Regulations as the entry permits to which these conditions were relevant no longer exist.

Regulation 10 - Regulation 36 (Restrictions on re-entry)

This regulations amends regulation 36 of the Migration Regulations as a result of the omission of regulation 123B by Statutory Rules 201 of 1991 and the inclusion of some of its provisions in regulation 122A.

Regulation 11 - Regulation 38 (Prescribed circumstances - section 47 of the Act)

This regulation omits regulation 38 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991. Provisions of regulation 38 which are still relevant are now included in regulation 3 (see regulation 4 above).

Regulation 12 - Regulation 39 (Prescribed class of persons - subsection 47(7) of the Act (definition of "prescribed non-citizen"))

This regulation omits regulation 39 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991. Provisions of regulation 39 which are still relevant are now included in new regulation 8A (see regulation 5 above).

Regulation 13 - Regulation 40 (Prescribed change in circumstances - paragraphs 36(1)(a) and 37(2)(a) of the Act)

This regulation amends regulation 40 of the Migration Regulations to delete references to section 47 of the Migration Act as a consequence of the deletion of section 47 by the Migration Act Amendment Act 1991.

Regulation 14 - Regulation 41 (Prescribed criteria - classes of visas)

Subsection 23(5) of the Migration Act provides that certain regulations relating to visas shall be taken to be repealed after 2 years unless otherwise provided for in those regulations.

This regulation adds a new subregulation to regulation 41 of the Migration Regulations to ensure that regulations relating to visas will not be taken to be repealed after 18 December 1991.

Regulation 15 - Regulation 42 (Prescribed criteria - entry permits)

Subsection 33(5) of the Migration Act provides that certain regulations relating to entry permits shall be taken to be repealed after 2 years unless otherwise provided for in those regulations.

This regulation adds a new subregulation to regulation 42 of the Migration Regulations to ensure that regulations relating to entry permits will not be taken to be repealed after 18 December 1991.

Reeulation 16 - New Regulations 48A and 48B

This regulation inserts new regulations 48A and 48B into the Migration Regulations business skills visa and business skills (senior executive) visa. These visas set out the criteria for business migration to Australia and replace the business (general) and business (joint venture) visas which were effectively deleted from the Migration Regulations by Statutory Rules 229 of 1991.

Regulation 17 - Regulation 60 (Domestic worker (overseas executive) visa)

This regulation makes a minor technical correction to regulation 60 of the Migration Regulations.

Regulation 18 - Regulation 87B (Occupational trainee visa)

This regulation amends regulation 87B of the Migration Regulations following a transfer in functions relating to occupational trainees from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs. References to the Minister for Employment, Education and Training have been omitted and extra criteria added.

Regulation 19 - Regulation 93 (Visitor (other) visa)

This regulation makes a minor technical amendment to regulation 93 of the Migration Regulations.

Regulation 20 - Regulation 95 (Return visa Class B)

This regulation amends regulation 95(c)(iii) of the Migration Regulations to delete the requirement that the applicant be the holder of a business (general) or a business (joint venture) visa or entry permit or the holder of a pre-19 December 1989 business migrant entry permit.

This amendment is made to ensure that persons who do not hold one of those visas or entry permits but who have nevertheless established or are taking part in a business, and are required to travel overseas for that business, can be granted a return visa class B.

Regulation 21 - Regulation 98B (Student (category A) visa)

This regulation amends regulation 98B of the Migration Regulations following a transfer in functions relating to students from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs. References to the Minister for Employment, Education and Training have been omitted.

Regulation 22 - Regulation 98D (Student (category B) visa)

This regulation amends regulation 98D of the Migration Regulations following a transfer in functions relating to students from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs. References to the Minister for Employment, Education and Training have been omitted.

Regulation 23 - Regulation 99 (Division to cease to have effect)

This regulation amends regulation 99 of the Migration Regulations to extend the operation of Division 3 and Part 2 of Schedule 2 to 31 March 1992.

Regulation 24 - Regulation 106 (Camp clearance visa)

Paragraph 106(b) of the Migration Regulations previously referred to camp clearance applying only to camps maintained by the United Nations High Commissioner for Refugees (UNHCR). However, Hong Kong camps, the source of much of our camp clearance intake, are maintained by the Hong Kong Government.

This regulation amends regulation 106 of the Migration Regulations to provide that as well as being maintained by UNHCR, a camp may be maintained by the Hong Kong Government.

This regulation also makes a minor technical amendment to regulation 106(c)(iv).

Regulation 25 - Regulation 108 (Grant of visa or entry permit to family unit members)

This regulation omits regulation 108(2)(f) of the Migration Regulations to remove references to the Minister for Employment, Education and Training as a consequence of the transfer in functions relating to occupational trainees from the Department of Employment, Education and Training to the Department of Immigration, Local Government and Ethnic Affairs. It also removes the requirement for adequate health insurance which was omitted from the criteria for the occupational trainee visa by SR 201 of 1991.

Regulation 26 - Regulation 118 (Yugoslav (temporary) entry permit)

This regulation amends regulation 118 of the Migration Regulations to extend the Yugoslav (temporary) entry permit so that Yugoslav nationals who were in Australia on 31 December 1991 and who held a valid entry permit on that date, are able to extend their stay in Australia until 30 April 1992.

Regulation 27 - Regulation 119G (Sri Lankan (temporary) entry permit)

This regulation amends regulation 119G of the Migration Regulations to extend the Sri Lankan (temporary) entry permit so that Sri Lankan nationals who were in Australia on 31 December 1991 and who held a valid entry permit on that date, are able to extend their stay in Australia until 30 April 1992.

Regulation 28 - Regulation 127 (Extended eligibility (family ) entry permit)

This regulation makes a minor technical correction to regulation 127(a)(ii) of the Migration Regulations.

This regulation also amends regulation 127 of the Migration Regulations by deleting the criterion in paragraph 127(a)(iii) that the applicant become eligible as the result of a death or permanent incapacitation. This was a remnant of an earlier requirement (omitted by Statutory Rules No 272 of 1990) that the death or permanent incapacitation had occurred since the applicant's arrival in Australia and is now considered to be an unnecessary additional restriction on applicants with very close family links with Australia.

Regulation 29 - Regulation 128 (Extended eligibilaty (economic) entry permit)

This regulation makes a minor technical correction to regulation 128 of the Migration Regulations.

This regulation also omits regulation 128(2) as a consequence of the inclusion of a definition of "prescribed non-citizen" in new regulation 8A (see regulation 5 above).

Regulation 30 - Regulation 131A (December 1989 (temporary) entry permit)

This regulation amends regulation 131A of the Migration Regulations to clarify the intention of policy that the applicant was in Australia on 18 December 1989.

This regulation also amends regulation 131A of the Migration Regulations so that assurances of support are discretionary for this entry permit.

Regulation 31 - Regulation 135 (Spouse (after entry) entry permit)

This regulation amends regulation 135 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 32 - Regulation 136 (Child (after entry) entry permit)

This regulation amends regulation 136 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 33 - Regulation 137 (Aged parent (after entry) entry permit)

This regulation amends regulation 137 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 34 - Regulation 139 (Skilled occupation entry permit)

This regulation amends regulation 139 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

This regulation also omits regulation 139(2) as a consequence of the inclusion of a definition of "prescribed non-citizen" in new regulation 8A (see regulation 4 above).

Regulation 35 - Regulation 140 (Family and other close ties entry permit)

This regulation changes the name of this entry permit from compassionate grounds to family and other close ties. The new name is more appropriate to describe the objectives of the entry permit, especially after the repeal of section 47 of the Migration Act by the Migration Act Amendment Act 1991.

This regulation also amends regulation 140 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 36 - Regulation 142 (Confirmatory entry permit)

This regulation amends regulation 142 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 37 - Regulation 142A (Refugee (permanent) entrv permit)

This regulation amends regulation 142A of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 38 - Regulation 142B (Pilot (permanent) entry permit)

This regulation amends regulation 142B of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 39 - Regulation 144 (Waiver of health criteria)

This regulation omits the compassionate grounds entry permit from regulation 144 of the Migration Regulations. Previously the health waiver under regulation 144(e) only applied to applicants who were defacto spouses applying for this entry permit. However defacto spouses are now granted spouse (after entry) entry permits so this provision is no longer required.

Regulation 40 - Regulation 146 (Qualifications - suitability for employment)

This regulation amends regulation 146 of the Migration Regulations to make a number of minor technical correction and to include the Department of Industrial Relations in the definition of "relevant Australian authority" in order to enable the Department of Industrial Relations to resume assessing educational qualifications.

Regulation 41 - Regulation 163 (Part 6 (Assurances of support))

This regulation omits Part 6 of the Migration Regulations (which included provisions relating to assurances of support) and inserts a new Part 6.

Division 1 of the New Part 6 relates to assurances of support given in relation to applications lodged before 20 December 1991. Regulations in the new Division 1 provide as follows:

Regulation 163 - (Interpretation) - interprets the term "assurance of support" for this Division;

Regulation 163A - (Form of certain assurances of support) - provides that the assurance of support must be in form determined by the Minister;

Regulation 163B - (Duration of assurances of support) - provides that if assurances of support in this Division have operated for more than 2 years on 19 December 1991, they will cease to operate after that date. If however the assurance of support has operated for less than 2 years it will operate for the balance of the 2 years and then cease to have effect;

Regulation 163C - (Effect of assurance of support) - provides that if a person, to whom an assurance of support applies, receives a jobsearch or newstart allowance or a special benefit, there is a debt due and payable to the Commonwealth by the person who gave the assurance; and

Regulation 163D - (Earlier liabilities not affected) - provides that this Division does not affect assurance of support liabilities incurred before 20 December 1991.

Division 2 of the New Part 6 relates to assurances of support given after 19 December 1991. Regulations in the new Division 2 provide as follows:

Regulation 164 - (Interpretation) - interprets the terms "assurance of support", "item 2 assurance" and "relevant entry permit" for this Division;

Regulation 164A - (Form and duration of assurance of support) - provides that an assurance of support must be on the form approved by the Minister, is of 2 years duration and does not operate until the bond required by regulation 164D (below) has been paid;

Regulation 164B - (Persons in respect of whom assurance of support may be given) - provides that a person may give assurances of support for no more than 2 persons and their under 18 years old dependents at one time;

Regulation 164C - (Effect of assurance of support) - provides that if a person, to whom an assurance of support applies, receives a jobsearch or newstart allowance or a special benefit, there is a debt due and payable to the Commonwealth by the person who gave the assurance; and

Regulation 164D - (Bond (item 2 assurances))- provides that bonds of $3500 (or $1500 for family unit members) must be paid before a decision is made on the applications to which the assurances of support relates.

Regulation 42 - Regulation 185 (Fee on application for temporary entry permit granted only in Australia)

This regulation amends regulation 185 of the Migration Regulations to ensure that students applying for extension of stay as AIDAB or EMSS students are exempt from paying a fee.

Regulation 43 - Regulation 186 (Fee on application for certain entry permits)

This regulation amends regulation 186 of the Migration Regulations as a consequence of changing the name of the compassionate grounds entry permit to the family and other close ties entry permit.

Regulation 44 - Schedule 1 (Criteria and representative symbols)

This regulation omits items 2 and 2A of Schedule 1 and substitutes new items 2 and 2A which make stylistic amendments and clarify that the assurance of support is to have been given at the time of decision on the application.

Regulation 45 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

This regulation inserts two new items into Part 1 of Schedule 2 as a result of the introduction of two new visa classes - business skills visa and business skills (senior executive) visa (see regulation 16 above).

Regulation 46 - Schedule 3 (Classes of entry permits)

This regulation amends item 7 of Schedule 3 of the Migration Regulations to add criterion E which includes criteria to be met by family unit members.

This regulation also inserts two new items into Class 1 of Schedule 3 as a result of the introduction of two new visa classes - business skills visa and business skills (senior executive) visa (see regulation 16 above).

This regulation also amends item 30 of class 1 of Schedule 3 of the Migration Regulations as a consequence of changing the name of the compassionate grounds entry permit to the family and other close ties entry permit.

Regulation 47 - Schedule 6 (Forms)

This regulation amends Form 1 of Schedule 6 of the Migration Regulations as a consequence of amendments made to the Migration Act by the Migration Act Amendment Act 1991.

Regulation 48 - Schedule 8 (Fees)

This regulation inserts two new items into Part 1 of Schedule 8 as a result of the introduction of two new visa classes - business skills visa and business skills (senior executive) visa (see regulation 16 above). It provides for fees of $1600 for each of these visas.

This regulation also makes a minor technical correction to item 17 of Part 1 of Schedule 8 of the Migration Regulations.

This regulation amends item 6 of Part 2 of Schedule 8 of the Migration Regulations as a consequence of changing the name of the compassionate grounds entry permit to the family and other close ties entry permit.

Regulation 49 - New Schedule 9

This regulation adds a new Schedule 9 Business Skills Points Test to the Migration Regulations. New Schedule 9 sets out the points to be awarded in the new points test for business migrants (see regulation 16 above).

Regulation 50 - Applications under former regulation 142A for PRC citizen (permanent) entry permits

This regulation makes a retrospective amendment to the former regulation 142A (PRC citizen (permanent) entry permit) of the Migration Regulations. This Regulation was omitted by SR 204 of 1990.

As regulation 142A was then drafted, the criteria had to be met at time of application (see regulation 34A). One criterion was that the applicant held an extended eligibility (PRC) temporary entry permit. However as applicants generally applied for this entry permit and the PRC citizen (permanent) entry permit at the same time (under regulation 119D and 22B) this criterion could not be met.

The regulation makes a retrospective amendment to regulation 142A of the Migration Regulations to provide that this criterion be met at time of decision rather than time of application.


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