Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1996 NO. 12

EXPLANATORY STATEMENT

STATUTORY RULES 1996 No. 12

Issued by the Authority of the Minister for Immigration and Ethnic Affairs

Migration Act 1958

Migration Regulations (Amendment)

Section 504 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, subsection 3 1 (1) of the Act provides that the regulations are to prescribe classes of visas, and subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class. In addition, regulations may be made pursuant to the following powers:

*       subsection 29(2) of the Act provides that the regulations may prescribe a period during which the holder of a visa may travel to, enter and remain in Australia;

*       subsection 29(3) of the Act provides that the regulations may prescribe a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;

*       subsection 31(1) of the Act provides that the regulations are to prescribe classes of visas;

*       subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;

*       subsection 31(4) of the Act provides for the regulations to prescribe whether visas are visas to travel to and enter, or to remain in Australia, or both;

*       subsection 45(1) of the Act provides that the regulations may make provision in relation to applications for visas;

*       subsection 45(2) of the Act provides that, without limiting the generality of subsection 45(1), the regulations may prescribe the way for making applications for visas of a specified class in specified circumstances, and in specified circumstances for visas of specified classes;

*       subsection 45(3) of the Act provides that, without limiting the generality of subsection 45(1), the regulations may provide for the places in which an applicant must be when an application for a visa of a specified class is made;

*       subsection 52(1) of the Act provides for the way to be prescribed in which a visa applicant or interested person must communicate with the Minister;

*       subsection 52(2) of the Act provides that the regulations may prescribe different ways in which a visa applicant or an interested person may communicate with the Minister. There is also provision for the regulations to specify the circumstances when communication is to be in a particular way;

*       section 70 of the Act provides that the regulations may provide when an officer is not required to give a non-citizen evidence of the visa granted;

*       subsection 71(1) of the Act provides for the regulations to prescribe the way in which evidence of a visa is to be given;

*       subsection 71(2) of the Act provides that the regulations may provide that the way in which evidence of a visa is given is to depend on the circumstances in which it is given.

The purpose of the Regulations is:

*       to provide a generic mechanism to allow applicants to make oral application for a visa, either by making a telephone call to or by personal attendance at a Departmental office in Australia but without the need to fill in an application form; and

*       to specify that oral applications will be permissible in certain circumstances for Long Stay (Visitor) (Class TN) visas: eg. where the applicant is already the holder of a visitor visa and has not been in Australia for more than 12 consecutive months.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 April 1996.

ATTACHMENT

Regulation 1 Commencement

This regulation provides for the Migration Regulations (Amendment) to commence on 1 April 1996.

Regulation 2 -- Amendment

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

Regulation 1 -- Regulation 1.03 (Interpretation)

This regulation inserts a definition for "oral application" in the existing general interpretation provision (regulation 1.03) of the Regulations. The definition provides that references in the Regulations to the term "oral application" mean a visa application that has been made in accordance with regulation 2.09.

Regulation 4 -- New regulation 2.09 (Oral applications for visas)

This regulation inserts new regulation 2.09 in the Regulations which provides that a reference to an oral application in Schedule 1 of the Regulations has the effect of permitting a person who is a member of a class of persons that is permitted to make an oral application for a visa of a particular class to:

*       make the application either by making a telephone call to, or by personal attendance at, an office of the Department of Immigration and Ethnic Affairs in Australia that has been specified by Gazette notice as an office where oral applications may be made;

*       but that such applications may be made only at those times or during those periods as have also been specified by Gazette notice.

Regulation 5 -- Regulation 2.10 (Where application must be made)

This regulation is consequential to the introduction of new regulation 2.09. It provides that paragraph 2.10(1)(b) of the Regulations (which provides for where a visa application may be made in Australia) is to be read subject to new regulation 2.09 with the result that an oral application may only be made by personal attendance at, or by telephone call to, an office of the Department of Immigration and Ethnic Affairs in Australia that has been Gazetted for that purpose in accordance with regulation 2.09.

Regulation 6 -- Regulation 2.13 (Communication with Minister)

This regulation amends existing subregulation 2.13(3) of the Regulations (which exhaustively controls the circumstances in which the applicant for a visa may communicate orally with the Minister) to provide that oral communication is authorised for the purpose of making an oral application.

Regulation 7 -- Regulation 2.19 (Evidence of a visa need not be given in certain cases)

This regulation amends existing regulation 2.19 of the Regulations (which exhaustively controls the circumstances in which evidence of the grant of a visa need not be given to the visa holder) to provide that no evidence of the visa need be given if the visa has been granted on the basis of an oral communication. This is necessary because it will not be possible to provide evidence such as a passport visa label by telephone.

Regulation 8 -- Regulation 2.22 (Invalid application for a substantive visa)

This regulation amends existing regulation 2.22 of the Regulations (which provides that an invalid application will in certain circumstances be taken to be an application for a Bridging D (Class WD) visa) to provide that neither an oral application nor a purported oral application will be an application for a Bridging D visa.

Regulation 9 -- Schedule 1 (Classes of visas)

Regulation 9.1 deletes the existing paragraph 1214(1)(b) of the Regulations and inserts a substantially similar provision with the added provision that an oral application for a Class TN (Long Stay (Visitor)) visa does not require the use of an approved form.

Regulation 9.2 inserts a new paragraph 1214(3)(aa) into the Regulations, which provides that in order to make an oral application for a Class TN (Long Stay (Visitor)), the applicant must be in Australia but not in immigration clearance and must be the holder of a current Class TN (Long Stay (Visitor)) visa or a Class TR (Short Stay (Visitor)) visa.

Regulation 10 -- Schedule 2, Part 686 (Tourist (Long Stay))

Regulation 10 amends the provisions of Part 686 (Tourist (Long Stay)) of Schedule 2 of the Regulations.

The existing note at the beginning of subclass 686 is amended to draw the reader's attention to the new definition of oral application in regulation 1.03.

Existing subregulation 686.221(4) of the Regulations controls the criteria which an applicant for a Tourist (Long Stay) visa must satisfy in order to be granted permission to work in Australia.

Regulation 10.1 omits the existing paragraphs 686.221(4)(a), (b), (c) and (d) and inserts new paragraphs (a), (aa), (b), (c) and (d) which have been expressed in terms of non-sexist language. New paragraph 686.221(4)(aa) provides that an applicant making an oral application cannot satisfy the requirements of subclause 686.221(4). This means that an applicant for a Tourist (Long Stay) visa who seeks permission to work in Australia must make a written application using the prescribed form.

Regulation 10.2 substitutes a new version of paragraph 686.211(4)(f) that has been rephrased in non-sexist terms consistent with the new paragraphs (a) to (d).

Regulation 10.3 amends existing subclause 686.511(2) of the Regulations (which controls the period of effect of a Tourist (Long Stay) visa), so that the existing subregulation only will apply to visas granted on the basis of written applications. The corresponding provision for oral applications is new subclause 686.511(3).

Regulation 10.4 includes a new subregulation 686.511(3) which prescribes the period during which the holder of a Tourist (Long Stay) visa may remain in Australia a after the grant of a visa on the basis of an oral application, and also prescribes the period during which the visa is valid for subsequent further travel to Australia and the permissible period of stay on each subsequent visit.

*       New paragraph 686.511(3)(a) provides that a visa holder who is granted a Tourist (Long Stay) visa on the basis of an oral application will be granted permission to stay for a further 6 months in Australia after the latest date that was permitted by the visa that was held at the time of making the oral application, or for a period ending 12 months from the applicant's most recent arrival in Australia, whichever is the shorter period. This means that an applicant who wishes to stay longer than 12 months in Australia by applying for a Tourist (Long Stay) visa must make a written application to do so.

*       New paragraph 686.511(3)(b) provides that where a Tourist (Long Stay) visa has been granted on the basis of an oral application, the visa holder may leave Australia and then return on one or more occasions while the visa remains in force, and that the visa holder may remain in Australia after each entry for a specified period or until a specified date.

Regulation 10.5 makes a technical amendment to existing clause 686.611.

Regulation 10.6 amends clause 686.711 of the Regulations to provide that there is to be no formal requirement to give evidence of the grant of a Long Stay (Visitor) visa if the visa is granted on the basis of an oral application. However, if evidence is given for the purposes of the Regulations, the evidence is to be in form of a visa label affixed to a valid passport. It will not be possible to give evidence of a visa at the time of grant if the visa that has been granted on the basis of an oral application made by telephone.


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