Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 346

EXPLANATORY STATEMENT

STATUTORU RULES 1992 No. 346

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 Regulations is to:

•       to make a number of amendments to the Migration Regulations to provide for fiance(e)s to gain permanent residence by being granted spouse (after entry) entry permits. Previously they could be granted confirmatory entry permits or family and other close ties entry permits;

•       to enable fiance(e)s who came to Australia, became illegal and then married their intended spouse, to apply for permanent residence;

•       to enable the Minister to take into account a prospective student's financial situation, English language ability and other relevant matters when deciding whether to grant a student (category A) visa;

•       to broaden the criteria for the woman at risk visa so that instead of being subject to persecution, an applicant may be registered as being of concern to the United Nations High Commissioner for Human Rights;

•       to extend the life of the Sri Lankan (temporary) entry permit until 30 June 1993;

•       to extend the lift of regulation 3B until 1 March 1953. Regulation 3B enables the Minister to declare an organisation or group of persons to be a declared body. If a person is a member of a declared body, the Minister acting personally, may refuse a person entry to Australia if the Minister suspects the person may be involved in criminal activity.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for regulations 3, 4, 5 and 11 to 16 to commence on 1 December 1992. These amendments all relate to changes made to the system of granting permanent residence to fiance(e)s. All other amendments will commence on gazettal.

Regulation 2 - Amendment

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

Regulation 3 - Regulation 40 (Prescribed change in circumstances (paragraphs 36(1)(a) and 37(2)(a) of the Act))

This regulation adds a new paragraph (u) to subregulation 40(1) of the Migration Regulations. This paragraph specifies that, a change in circumstances is constituted by being a person described in the new paragraph 42(1C)(bb) (inserted by regulation 4 below).

Regulation 4 - Regulation 42 (Prescribed criteria (entry permits))

This regulation adds a new paragraph (bb) to subregulation 42(1C) of the Migration Regulations to provide for fiance(e)s who became illegal entrants before they married to obtain permanent residence. (Fiance(e)s who became illegal entrants after they married are already covered by paragraph 42(1C)(ba)).

Regulation 5 - Regulation 72 (Prospective marriage visa)

This regulation amends subparagraph 72(c)(ii) of the Migration Regulations to require that the marriage take place within 6 months after the expected date of arrival of the applicant in Australia, rather than 3 months.

Regulation 6 - Regulation 95B (Student (category A) visa)

Subregulation 6.1 omits paragraph 98E(1)(c) of the Migration Regulations and substitutes new paragraph 98B(1)(c) which does not include the provision requiring the applicant to have adequate means of support. This amendment is consequential upon the insertion of a new subregulation 98B(1A) by subregulation 6.2 below.

Subregulation 6.2 amends regulation 98B of the Migration Regulations to insert a new subregulation (1A) which is the same as subregulation 98D(2) (student (category B) visa).

This will allow the Minister to take into account when deciding an application for a student (category A) visa:

•       whether the applicant has sufficient financial means to undertake the course without having to work in contravention of a mandatory work condition;

•       whether the applicant's English is sufficient for undertaking the course; and

•       any other matters which are considered relevant.

Regulation 7 - Regulation 98F (English language test)

This regulation amends regulation 98F of the Migration Regulations as a result of the insertion. of subregulation 98B(1A) which allows the Minister to take into account when deciding an application for a student (category A) visa, whether the applicant's English is sufficient for undertaking the course.

Regulation 8 - Regulation 8 (Woman at risk visa)

This regulation omits paragraph 105(a) of the Migration Regulations and substitutes a new paragraph 105(a) to broaden the criteria so that as an alternative to being subject to persecution, an applicant may be registered as of concern to the UNHCR.

Regulation 9 - Regulation 107B (PRC (temporary) visa)

This regulation omits existing subregulation 107B(4) of the Migration Regulations and substitutes a new subregulation 107B(4) to correct an unintended effect of an amendment made to that subregulation by Statutory Rules No 278 of 1992.

The intention is that all persons who are granted a PRC (temporary) visa on the basis that they hold a PRC (temporary) entry permit, which was granted to them because Departmental records show them to have entered Australia on or before 20 June 1989 and they were in Australia on that date, to subject to a terminating condition that they must not travel to the PRC.

The effect of the previous provision was that persons who are the spouses or dependent children of holders of PRC (temporary) entry permits are not subject to the condition. However, where such spouses and dependent children have been granted the PRC (temporary) entry permit because they were in Australia on 20 June 1989 rather than on the basis of their marriage to or dependency on a person who held a PRC (temporary) entry permit, the intention is that they should also be subject to the condition.

Regulation 10 - Regulation 119G (Sri Lankan (temporary) entry permit)

This regulation amends paragraphs (1)(ba) and (2)(b) of regulation 119G of the Migration Regulations to extend the period for which this entry permit can be granted to 30 June 1993.

Regulation 11 - Regulation 126 (Extended eligibility (spouse) entry permit)

This regulation inserts a new sub-subparagraph 126(1)(a)(ii)(AA) into the Migration Regulations. This provision will enable grant of an extended eligibility (spouse) entry permit to fiance(e)s who became illegal entrants before they married (fiance(e)s who became illegal entrants after they married are already covered by the reference to paragraph 42(1C)(ba) in sub-subparagraph 126(1)(a)(ii)(A)).

Regulation 12 - Regulation 127 (Extended eligibility (family) entry permit)

This regulation omits subparagraph 127(a)(1v) and substitutes a new subparagraph 127(a)(iv) which omits references to paragraphs 42(1C)(b) and (ba). These paragraphs apply to fiance(e)s and their omission will mean that fiance(e)s can no longer be granted an extended eligibility (family) entry permit (which is valid for the purposes of section 47 of the Migration Act) as a "route" to obtaining permanent residence. This amendment is made as pan of a new scheme whereby fiance(e)s can only obtain permanent residence through the extended eligibility (spouse) entry permit (regulation 126) and/or the spouse (after entry) entry permit (regulation 135).

Regulation 13 - Regulation 135 (Spouse, (after, entry) entry permit

This regulation adds a new paragraph (1)(aa) to regulation 135 of the Migration Regulations to provide for grant of a spouse (after entry) entry permit to a person who holds an extended eligibility (spouse) entry permit because he or she satisfied paragraph 42(1C)(bb). That is, he or she held a prospective marriage entry permit, but became illegal and then married the person he or she entered Australia to marry. These fiance(e)s will be required to undergo the two year "trial" period.

This regulation also adds a new paragraph (1)(ab) to regulation 135 of the Migration Regulations to provide for grant of a spouse (after entry) entry permit to a person who holds a prospective marriage entry permit, who has married the person he or she entered Australia to many, who is nominated by his or her spouse and who has a genuine and continuing marital relationship with that spouse. These applicants will not have to undergo the, two year "trial" period which applies to other spouses applying for permanent residence after entry to Australia.

Regulation 14 - Regulation 140 (Family and other close ties entry permit)

This regulation omits subparagraph 140(2)(c)(i) and substitutes a new subparagraph 140(2)(c)(i) which omits references to paragraphs 42(1C)(b) and (ba). These paragraphs apply to fiance(e)s and their omission will mean that fiance(e)s can no longer be granted a family and other close ties entry permit in order to obtain permanent residence. This amendment is made as part of a new scheme whereby fiance(e)s can only obtain permanent residence through the extended eligibility (spouse) entry permit (regulation 126) and/or tho spouse (after entry) entry permit (regulation 135).

Regulation 15 - Regulation 142 (Confirmatory entry permit)

This regulation omits subparagraph 142(b)(ii). This paragraph applied to fiance(e)s and its omission will mean that fiance(e)s can no longer be granted a confirmatory entry permit in order to obtain permanent residence. This amendment is made as part of a new scheme whereby fiance(e)s can only obtain permanent residence through the extended eligibility (spouse) entry permit (regulation 126) and/or the spouse (after entry) entry permit (regulation 135).

Regulation 16 - Regulation 186B (Fee on application for a spouse (after entry) entry permit)

This regulation omits existing paragraph 186B(1)(b) of the Migration Regulations and substitutes new paragraph 186B(1)(b) to provide for a fee of $370 to be paid on application for a spouse (after entry) entry permit by the holder of a prospective marriage visa or entry permit.

Regulation 17 - Schedule 2 (Classes of visas, prescribed criteria and code numbers)

This regulation amends item 24 of Part 1 of Schedule 2 of the Migration Regulations (Foreign Government Agency visa) to omit criterion L. Criterion L, which requires the applicant to produce a statement from his or her employing company stating that the employment of the applicant in Australia would be of benefit to Australia, is clearly not applicable to the foreign government agency visa.

Regulation 18 - Amendment to Statutory Rules 1991 No. 349

Under Statutory Rules No. 349 of 1991, regulation 3B of the Migration Regulations which enables the Minister to grant a visa or entry permit where the Minister, acting personally, is satisfied that a person who is a member of a body (declared by the Minister for the purposes of the regulation) is not likely to become involved in criminal or illegal activities inside or outside Australia, was to cease being in force on 30 November 1992. This regulation provides for regulation 3B to remain in force until 1 March 1993.


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