Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1998 NO. 36

EXPLANATORY STATEMENT

STATUTORY RULES 1998 NO. 36

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.

In addition, regulations may be made pursuant to the following powers:

-       subsection 31(3) of the Act provides that the Regulations may prescribe criteria for

visas of a specified class;

-       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 in specified

circumstances, applications for a visa of a specified class and applications for visas in

specified circumstances for visas of a specified class; and

-       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.

The purpose of the Regulations is to amend the Migration Regulations to prevent certain stepchildren from being disadvantaged by allowing them to apply for, and be granted, certain temporary and permanent visas (these are Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visas respectively). These visas were introduced on 1 October 1997 to make permanent residence available to certain persons who have been in Australia under humanitarian arrangements and who have remained in Australia for some time with their status unresolved.

Those covered by the decision are citizens of Kuwait, Iraq, Lebanon, the People's Republic of China, Sri Lanka and the former Republic of Yugoslavia who arrived in Australia prior to particular dates which relate to the cessation of previous visa and entry permit arrangements for certain of those citizens.

These citizens will be permitted a further period of temporary residence with the availability of permanent stay after they have been in Australia for a total of ten years. Applicants for the new visas may also include immediate family members in their applications, provided those persons were immediate family members on 13 June 1997, the date of the Minister's announcement. Immediate family member is defined in existing regulation 1.12AA

The amendments, therefore, will enable a step-child of the applicant (that is a dependent child of the spouse of an applicant) to apply for, and be granted a Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visa provided that they were a member of the applicant's family on 13 June 1997.

In particular, the Regulations:

-       provide that a dependent child of the spouse of an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa may make an application for those visas at the same time and place as the above-mentioned applicant (that is, the dependent child may make a combined application for a Resolution of Status (Residence) (Class BL) and Resolution of Status (Temporary) (Class UH) visa) (subregulations 3.1 and 3.2);

-       provide that a dependent child of the spouse of an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa may make an application for Resolution of Status (Temporary) (Class UH) visa if the spouse of the above-mentioned applicant makes such an application (subregulations 3.3 and 3.5);

-       make consequential amendments to the time of application criteria for a Resolution of Status - Family Member (Temporary), Subclass 450 visa, to enable the grant of a Subclass 450 visa to a dependent child of the spouse of an applicant for a Resolution of Status (Temporary) (Class UH) visa (regulation 4);

-       make consequential amendments to the time of application criteria and time of decision criteria for a Resolution of Status (Temporary), Subclass 850, visa or a Resolution of Status, Subclass 851, visa to enable the grant of a Subclass 850 or 851 visa to a dependent child of the spouse of an applicant for a Resolution of Status (Temporary) (Class UH) and Resolution of Status (Residence) (Class BL) visa (regulations 5 and 6); and

-       make a technical amendment (subregulation 3.4).

Details of the Regulations are set out in the Attachment.

The Regulations, which benefit visa applicants, are taken to have commenced on 1 October 1997, which is the date that the new visa classes were introduced. These Regulations are retrospective so as to cover applications in which step-children have already been included, the applicants' having been unaware that the provisions did not extend to them.

The retrospectivity is not prejudicial to any person and therefore, does no contravene subsection 48(2) of the Acts Interpretation Act 1901.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides that these Regulations are taken to have commenced on 1 October 1997.

Regulation 2 - Amendment

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

Regulation 3 - Schedule 1 (Classes of visas)

The purpose. of regulation 3 is to enable a child to make an application for a visa where that child is a dependent child of the spouse of the principal applicant or principal person respectively, being a spouse who is also an applicant for a Resolution of Status (Temporary) (Class UH) visa or a Resolution of Status (Residence) (Class BL) visa.

Subregulation 3.1 omits paragraph 1127A(3)(d) and substitutes a new paragraph (d). New paragraph 1127A(3)(d) provides that a person, other than the holder of a Subclass 450 (Resolution of Status - Family Member (Temporary)) visa, may make an application for a Resolution of Status (Residence) (Class BL) visa at the same time and place and combined with, the application by the principal applicant, if they are:

*       a member of the immediate family of the principal applicant; or

*       a dependent child of the spouse of the principal applicant, if the spouse is also an applicant for a Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visa.

Subregulation 3.2 omits paragraph 1216A(3)(f) and substitutes a new paragraph (f). New paragraph 1216A(3)(f) provides that a person, may make an application for a Resolution of Status (Temporary) (Class UH) visa at the same time and place and combined with, the application in Australia by the principal person, if they are:

*       a member of the immediate family of the principal person; or

*       a dependent child of the spouse of the principal person, if the spouse is also an applicant for a Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visa.

Subregulation 3.3 omits subparagraph 1216A(3)(g)(i) and substitutes a new subparagraph (i). New subparagraph 1216(3)(A)(g)(i) provides that a person may make an application for a Resolution of Status (Temporary) (Class UH) visa outside Australia, if they are:

*       a member of the immediate family of the sponsor; or

*       a dependent child of the spouse of the sponsor, if the spouse is also an applicant for a Resolution of Status (Temporary) (Class UH) visa.

Subregulation 3.4 makes a technical amendment.

Subregulation 3.5 omits subparagraph 1216A(3)(h)(i) and substitutes a new subparagraph (i). New subparagraph 1216A(3)(h)(i) provides that persons may make a combined application for a Resolution of Status (Temporary) (Class UH) visa outside Australia, if each person is:

*       a member of the immediate family of the sponsor; or

*       a dependent child of the spouse of the sponsor, if the spouse is also an applicant for a Resolution of Status (Temporary) (Class UH) visa;

and they have been identified in the application of the sponsor who has made an application for a Resolution of Status (Temporary) (Class UH) visa in Australia.

Regulation 4 - Schedule 2, Part 450 (Resolution of Status - Family Member (Temporary))

The purpose of regulation 4 is to provide that a dependent child of a spouse of the sponsor, who has made an application for a Resolution of Status (Temporary) (Class UH) visa, may be granted a Subclass 450 visa if they satisfy the criteria for the grant of that visa.

A new note is substituted following Division 450.1 which includes a reference to "dependent child" at regulation 1.03.

Subregulation 4.1 omits paragraph 450.21 1(a) and substitutes a new paragraph (a) to add a reference to the dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa.

Subregulation 4.2 omits and substitutes new clauses 450.212 and 450.213. New clause 450.212 provides that the applicant, at the time of application, must:

*       have been a member of the immediate family of the sponsor on 13 June 1997; or

*       have become a dependent child of the sponsor after that date; or

*       have been a dependent child of the spouse of the sponsor on 13 June 1997.

New clause 450.213 provides that the sponsor must have identified the applicant as:

*       a member of the immediate family of the sponsor (with the exception of a person who becomes a dependent child of the sponsor after 13 June 1997); or

*       a dependent child of the spouse of the sponsor;

in the sponsor's application and that these applicants are sponsored by the sponsor.

Regulation 5 - Schedule 2, Part 850 (Resolution of Status (Temporary))

New notes are substituted following Divisions 850.1 and 850.2. The new note following Division 850.1 includes a reference to "dependent child" at regulation 1.03.

The new note following Division 850.2 provides that only 1 person need satisfy the primary criteria for the grant of the visa. Members of the immediate family of the person and dependent children of the spouse of the person need only satisfy the secondary criteria for the grant of the visa.

Subregulation 5.1 amends clause 850.222 to provide that each dependent child of the spouse of the applicant must satisfy the criterion as well as the members of the immediate family of the. applicant.

A new note is substituted for the note following Division 850.3. The new note provides that members of the immediate family of the applicant and dependent children of the spouse of the applicant, who has satisfied the primary criteria, are eligible for the grant of the visa if they satisfy the secondary criteria.

Subregulation 5.2 omits and substitutes new clauses 850.311 and 850.312. New clause 850.311 adds a reference to the dependent child of the spouse of the principal person, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa as the person who is an applicant for the visa.

New clause 850.312 provides that the applicant, at the time of application, must:

*       have been a member of the immediate family of the principal person on 13 June 1997; or

*       have become a dependent child of the principal person after that date; or

*       have been a dependent child of the spouse of the principal person on 13 June 1997.

Subregulation 5.3 amends subclause 850.321(1) to omit reference to subclauses (2) and (3) and substitutes reference to subclauses (2), (3), (4) and (5).

Subregulation 5.4 inserts two new subclauses (4) and (5) to clause 850.321. New subclause 850.321(4) provides that an applicant who is the dependent child of the spouse of the person, who has satisfied the primary criteria and is the holder of a Subclass 850 visa, may be granted a Subclass 850 visa.

New subclause 850.321(5) provides that an applicant may be granted a Subclass 850 visa if.

*       at the time of application, the applicant was the dependent child of the spouse of the person who has been granted a Subclass 850 visa ("the principal holder"); and

*       the applicant would meet the requirements of subclause (4), except that the spouse has died; and

*       the Minister is satisfied that:

- the applicant would have continued to be a dependent child of the spouse of the

principal holder if the spouse had not died; and

- either:

[diamond]       the spouse relationship would have continued had not the spouse died; or

[diamond]       if the spouse relationship had ceased before the death of the spouse, the principal

       holder:

       * has been granted joint custody or access by a court; or

       * has a residence order or contact under the Family Law Act 1975; or

       * has a maintenance obligation;

       in relation to the applicant.

Regulation 6 - Schedule 2, Part 851 (Resolution of Status)

New notes are substituted following Divisions 851.1 and 851.2. The new note following Division 851.1 includes a reference to "dependent child" at regulation 1.03.

The new note following Division 851.2 provides that only 1 person need satisfy the primary criteria for the grant of the visa. Members of the immediate family of the person and dependent children of the spouse of the person need only satisfy the secondary criteria for the grant of the visa.

Subregulation 6.1 amends clause 851.224 to provide that each dependent child of the spouse of the applicant must satisfy the criterion as well as the members of the immediate family of the applicant.

A new note is substituted for the note following Division 851.3. The new note provides that members of the immediate family of the person and dependent children of the spouse of the person, who has satisfied the primary criteria, are eligible for the grant of the visa if they satisfy the secondary criteria.

Subregulation 6.2 amends subclause 851.321(1) to omit reference to subclauses (6) and (7) and substitutes reference to subclauses (6), (7), (8), (9), (10), (11), (12) and (13).

Subregulation 6.3 amends paragraph 851.321(7)(a) to insert a reference to a person whose family unit the applicant is a member.

Subregulation 6.4 omits and substitutes new subclause 851.321(8) and inserts new subclauses (9), (10), (11), (12), (13) and (14) respectively. New subclause 851.321(8) provides that if the applicant ceases to be dependent between the grant of the temporary visas (Subclasses 450 or 850) and a decision on the permanent visa (Subclass 851), in the following circumstances:

*       due to the passage of time; and

*       the person, on whom the applicant had been dependent at the time of application has died; and

*       the applicant has maintained close business, cultural or personal ties in Australia;

they remain eligible for the grant of the Subclass 851 visa provided that the original sponsor or principal person would have been granted the Subclass 851 visa.

The purpose of new subclauses 851.321(9), (10), (11), (12) and (13) is to make provision for the grant of a Subclass 851 visa to the dependent child, or the dependent child of the dependent child, of the spouse of the person satisfying the primary criteria. Under Schedule 1 criteria dependent children of the spouse are able to make a combined application with that person. New subclause 851.321(9) provides that an applicant may be granted a Subclass 851 visa if:

*       the applicant is the holder of a Subclass 450 visa; and

*       the applicant is the dependent child, or a dependent child of a dependent child, of the spouse of a person who sponsored them; and

*       that person, who sponsored them, has been granted a Subclass 851 visa.

New subclause 851.321(10) provides that an applicant may be granted a Subclass 851 visa if:

*       the applicant is the holder of a Subclass 850 visa; and

*       the applicant is the dependent child, or a dependent child of a dependent child, of the spouse of a person with whom they made a combined application for a Subclass 851 visa; and

*       that person, has been granted a Subclass 851 visa.

New subclause 851.321 (11) provides that an applicant maybe granted a Subclass 851 visa if:

*       the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

*       at the time of application, the applicant was the dependent child, or dependent child of a dependent child, of the spouse of a person who has been granted a Subclass 851 visa ("the principal holder"); and

*       the principal holder sponsored, or made a combined application with, the applicant; and

*       the applicant, or the person on whom the applicant is dependent ("the person"), has ceased to be a dependent child of the spouse; and

*       if the applicant, or the person, would have met the requirements of subclause (9) or (10) .except that they ceased to be dependent because of the death of the spouse, the Minister is satisfied that either:

- they would have remained dependent but for the death of the spouse; or

- if the spouse relationship has ceased before the death of the spouse, the principal holder:

[diamond]       has been granted joint custody or access by a court; or

[diamond]       has a residence order or contact under the Family Law Act 1975; or

[diamond]       a maintenance obligation;

in relation to the applicant; and

*       if the applicant, or the person, is no longer dependent upon the spouse, at the time of decision, because the applicant or the person tamed 18, then:

-       the spouse and the principal applicant continue to be in a spouse relationship; or

-       the Minister is satisfied that the spouse relationship would have continued but for the

       death of the spouse; or

-       if the spouse relationship has otherwise ceased, the principal holder:

[diamond]       had been granted joint custody or access by a court; or

[diamond]       had a residence order or contact order under the Family Law Act 1975; or

[diamond]       had a maintenance obligation;

       in relation to the applicant or the person that was granted before the applicant or the

       person turned 18.

New subclause 851.321(12) provides that an applicant may be granted a Subclass 851 visa if.

*       the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

*       the applicant would have met the requirements of subclause (9) or (10), except that the person who would have satisfied the primary criteria ("the principal person') has died; and

*       the Minister is satisfied that the applicant has maintained close business, cultural or personal ties in Australia; and

- either:

[diamond]        the spouse relationship would have continued had not the principal person died; or

[diamond]        if the spouse relationship had ceased before the death of the principal person, the principal person:

* had been granted joint custody or access by a court; or

* had a residence order or contact under the Family Law Act 1975; or

* had a maintenance obligation; in relation to the applicant.

New subclause 851.321(13) provides that an applicant may be granted a Subclass 851 visa if..

*       the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

*       at the time of application, the applicant was the dependent child, or a dependent child of a dependent child, of the spouse of a person ("the principal person'), who sponsored, or made a combined application with, the applicant; and

*       the applicant would have met the requirements of subclause (9) or (10), except that:

- the applicant, or the person on whom the applicant is dependent, has turned 18; and

- the principal person has died; and

*       the Minister is satisfied that the applicant has maintained close business, cultural or personal ties in Australia.

New subclause 851.321(14) provides a definition of "member of the immediate family" for the purposes of clause 851.321. Persons included in the definition are:

*       a spouse of a person;

*       a dependent child of a person;

*       a parent of a person, where the person was not 18 years or more at time of application;

*       a dependent child of a person who is, or has been, a dependent child of the person.


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