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MIGRATION REGULATIONS (AMENDMENT) 1997 NO. 216
EXPLANATORY STATEMENTSTATUTORY RULES 1997 No. 216
Issued by the Authority of the Minister for Immigration and Multicultural 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.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(c) of the Act provides that the Regulations may make provision in relation to the furnishing of information by, and obtaining information from, persons entering and leaving Australia and persons arriving or departing from an airport in Australia on an aircraft operated by an international air carrier;
- paragraph 504(1)(d) of the Act provides that the Regulations may provide for the use by persons other than departmental officers, of information collected with respect to passengers; and
- paragraph 504(1)(e) of the Act provides that regulations may be made in relation to the giving, lodging and serving of documents for the purposes of the Act by the Minister, the Secretary or any other person or body.
In addition, regulations may be made pursuant to the following powers:
- subsection 3 1 (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 remain in Australia, or both;
- subsection 40(1) of the Act provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
- section 41 of the Act provides that, without limiting the generality of the section, the Regulations may provide that visas or visas of a specified class are subject to specified conditions, including but not limited to a condition that a further visa cannot
be granted and a condition restricting work rights;
- subsection 42(3) of the Act provides that the Regulations may permit a person or a class of persons to travel to Australia without a valid visa;
- 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 in: prescribe the way for making applications for a visa of a specified class in specified circumstances, and in specified circumstances for a visa of a specified class;
- subsection 45(3) of the Act provides that, without limiting the generality of subsection 45(1), the Regulations may provide for the place in which an applicant must be when an application for a visa of a specified class is made; subsection 46(2) of the Act provides for prescribing a class of visas an application for which may be taken under the regulations to have been validly made;
- subsection 66(1) of the Act provides for the regulations to prescribe the way in which the Minster is to notify a decision to grant or refuse to grant a visa; and
- subsection 71(2)of the Act provides that the regulations may provide that the way in which evidence of a visas given is to depend on the circumstances in which it is given.
The purposes of the Regulations are to amend the Migration Regulations to give effect to Government decisions on the Electronic Travel Authority (Class UD) visas so that applications for such visas can be made in immigration clearance and provide for work rights to be attached to certain bridging! visas where, if six months have elapsed since the making of a protection visa application, no primary decision in relation to the protection visa application has been made.
A protection visa application may be made by persons who seek recognition as refugees under the United Nations Refugees Convention. A Bridging Visa A or B is granted to a person who makes a substantive visa application so that they remain lawfully in Australia during the processing of that visa application. It is a requirement for the grant of the Bridging Visa A or B that the person was lawfully in Australia at the time the substantive visa application was made.
Specifically, the proposed Regulations will:
* permit the grant of Electronic Travel Authority visas ("ETA visas") at airports immediately prior to travel to Australia, and while the applicant is in immigration clearance immediately after arrival in Australia, so that persons who are travelling to Australia in good faith in the belief that they have a valid ETA visa and who are not character or security risks can be granted an ETA visa if there is no computer record of a visa: this typically occurs where there has been a keyboard error in transcribing identification information from languages which do not use the Latin alphabet (regulations 3, 4, 5, 8, 9 and 10); and
* provide Bridging Visas A and B with work rights to those protection visa applicants, who currently hold a Bridging Visa A or B without permission to work, if six months have elapsed since the protection visa application was made and no primary decision to grant or refuse to grant a protection visa has been made (regulations 6 and 7). Details of the Regulations are set out in the Attachment.
ATTACHMENT
PART 1 - PRELIMINARY
Regulation 1 - Commencement
Subregulation 1.1 provides that the Regulations, with the exception of regulations 6 and 7, commence on 1 September 1997.
Subregulation 1.2 provides that regulations 6 and 7 commence on 1 November 1997.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 2.07AB (Application for Electronic Travel Authority visas)
This regulation amends regulation 2.07AB to broaden the circumstances in which it is possible to apply for an Electronic Travel Authority ("ETA") visa.
Subregulation 3.1 amends existing regulation 2.07AB (which becomes subregulation 2.07AB(1)) so that it will only apply to ETA visa applications that are made outside Australia.
Subregulation 3.2 also amends existing regulation 2.07AB to omit the existing reference (at paragraph 2.07AB(g)) to the purchase of an airline ticket. Although it is usual to apply for an ETA visa when the airline ticket is purchased, this amendment will permit persons to apply for an ETA visa after they have purchased their airline ticket. The effect is to permit people who are travelling on passports of ETA countries (that is, countries that have been Gazetted under item 1208A(3)(c) or (d) of Schedule 1 to the Regulations) to apply for an ETA visa at the airline check-in immediately prior to departure if there is no computer record of a visa permitting them to travel to Australia. This situation typically occurs where there has been a keyboard error in transcribing identification information from languages which do not use the Latin alphabet. In such circumstances, the airline is expected to process an ETA visa application before issuing a boarding pass. A visa will not be issued if the person is recorded on the Migration Alert List.
Subregulation 3.3 inserts new subregulation 2.07AB(2) which allows applications for ETA visas while the applicant is in immigration clearance. This provision is intended to provide a safety net for bona fide travellers from ETA countries who have travelled to Australia in good faith after their airline has failed to ensure that they held a valid visa. It will not be possible to apply for an ETA visa once a person is in Australia and outside of immigration clearance.
The person must be a passport holder of an ETA country and not be a permanent resident of Norfolk Island (this protects such persons from the inadvertent grant of an ETA visa which would remove the person's right as a permanent resident of Norfolk Island to remain permanently in Australia). Visas will not be issued if the person is recorded on the Migration Alert List. An airline which carries to Australia a person who does not have a current visa is also liable to pay a penalty under section 229 of the Act.
Regulation 4 - Regulation 2.10 (Where application must be made)
Regulation 2.10 of the Migration Regulations prescribes the places where visa applications may be made.
Regulation 4 of these Regulations amends paragraph 2.10(1)(b) to provide that an application for an ETA visa may be made in immigration clearance.
Regulation 5 - Schedule 1 (Classes of visas)
Existing paragraphs 1208A(3)(a) and (b) of Schedule 1 to the Regulations prescribes where an application for an ETA visa may be made and where the applicant must be at that time.
These amendments extend the existing provisions to permit ETA visa applications to be made when the applicant is in immigration clearance.
Regulations 6 and 7 - Schedule 2
Part 010 (Bridging Visa A)
Part 020 (Bridging Visa B)
On 1 July 1997, Parts 010 and 020 of Schedule 2 to the Regulations were amended by Statutory Rules 1997 No. 185 to limit the eligibility for a Bridging Visa A or B with work rights to applicants who apply for a protection visa on or after 1 July 1997 and who, at the date of making their protection visa application, have been in Australia for less than 45 days. The Regulations also provided the grant of bridging visas with permission to work for protection visa applicants who are within a class of persons specified by Gazette Notice. The purpose of this amendment is to allow Bridging Visa A or B holders who:
* applied for a protection visa on or after 1 July 1997;
* having been in Australia for more than 45 days in the preceding 12 months; and
* are not within a class of person specified by Gazette notice;
to be granted bridging visas with permission to work if no primary decision to grant or to refuse to grant the protection visa has been made after 6 months from the date of the protection visa application.
Regulations 8, 9 and 10 - Schedule 2
Part 956 (Electronic Travel Authority (Business Entrant--Long Validity))
Part 976 (Electronic Travel Authority (Visitor))
Part 977 (Electronic Travel Authority (Business Entrant--Short Validity))
There are three subclass of ETA: Subclass 956 (Electronic Travel Authority (Business Entrant-Long Validity)), Subclass: 976 (Electronic Travel Authority (Visitor)) and Subclass 977 (Electronic Travel Authority (Business Entrant-Short Validity)).
Regulations 8, 9 and 10 of these Regulations amend these three subclasses respectively to prescribe that at the time when the visa is granted the applicant for an ETA visa must be outside Australia if the application is made outside Australia, and that the ETA visa applicant must be in immigration clearance if the visa application is made in immigration clearance.