Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION (AFGHANISTAN - UNITED NATIONS SECURITY COUNCIL RESOLUTION NO. 1390) REGULATIONS 2002 2002 NO. 212

STATUTORY RULES 2002 No. 212

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration (Afghanistan - United Nations Security Council Resolution No. 1390) Regulations 2002

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing 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 under the Act:

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

-       paragraph 116(1)(g) of the Act provides that, subject to subsections 116(2) and 116(3), the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the visa holder; and

-       subsection 116(2) of the Act provides that the Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

The purpose of the Regulations is to implement the objectives of the United Nations Security Council Resolution 1390 (2002) ("the Resolution"), which imposes sanctions against persons designated by a Committee of the Security Council. Australia is obliged under the Charter of the United Nations to comply with decisions of the Security Council.

The intended effect of the Regulations is to:

-       prevent the grant of a visa to a person who falls within the definition of "UNSC-designated person" under regulation 3 of the proposed Regulations, unless the Minister is satisfied that the grant of the visa is necessary for the fulfilment of a judicial process, or the Committee has made a determination that justifies the grant of the visa; and

-       allow the Minister to cancel a visa if the Minister is satisfied that the visa holder falls within the definition of "UNSC-designated person" under regulation 3 of the proposed Regulations, unless the Minister is satisfied that the continuation of the visa is necessary for the fulfilment of a judicial process, or the Committee has made a determination that justifies the continuation of the visa.

A "UNSC-designated person" is any of the following persons designated by the Committee under paragraph 2 of the Resolution:

-       Usama bin Laden;

-       members of the Al-Qaida organisation or of the Taliban; and

-       other individuals, members of a group, undertakings or entities associated with the above, who have been designated by the Committee in accordance with Resolution 1267 (1999) or Resolution 1333 (2000) of the United Nations Security Council.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 November 2002.

0206850A-020829Z

Attachment

Regulation 1 - Name of Regulations

Regulation 1 provides that these Regulations are the Migration (Afghanistan - United Nations Security Council Resolution No. 1390) Regulations 2002 (the Regulations).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 1 November 2002.

Regulation 3 - Definitions

Regulation 3 defines the meaning of the terms "Act", "Committee", "UNSC-designated person" and various Resolutions for the purpose of the Regulations. In particular, "UNSC-designated person" is defined to mean any of the following persons:

•       Usama bin Laden;

•       members of the Al-Qaida organisation and members of the Taliban; and

•       other individuals, groups, undertakings or entities associated with the above, as referred to in paragraph 2 of Security Council Resolution 1390.

The definition of "UNSC-designated person" is based on paragraph 2 of the Resolution.

Regulation 4 - Application

Regulation 4 sets out how the Regulations are to be applied. The effect of the regulation is to ensure that the Regulations apply in addition to, and despite any provision to the contrary in, any other Regulations under the Act.

In particular, if an applicant for a visa is or becomes a "UNSC-designated person" under regulation 3 of the Regulations at the time of decision for that visa, the applicant must meet the criterion set out in regulation 5, irrespective of the class of visa for which he or she has applied. That is, the criterion in regulation 5 must be satisfied in addition to the criteria specified for that visa class under the Migration Regulations 1994.

Regulation 5 - Visas not to be granted to UNSC-designated persons

Subregulation 5(1) provides that regulation 5 applies in relation to an application for a visa made but not finally determined before 1 November 2002, or made on or after 1 November 2002.

Therefore, if an applicant for a visa is a "UNSC-designated person" at the time of decision on or after 1 November 2002, that person will not be able to be granted a visa unless he or she satisfies the requirements in subregulation 5(3). However, an applicant will meet the requirements in subregulation 5(2) if, at the time of decision on or after 1 November 2002, the Minister is satisfied that the applicant is not a UNSC-designated person.

Subregulation 5(2) sets out a criterion applicable at the time of decision to an application for a visa of any class. The Minister must be satisfied that the applicant is not a UNSC-designated person. Under subsection 65(1) of the Act, if the applicant does not satisfy the criterion in subregulation 5(2) of the Regulations, the Minister is to refuse to grant the visa.

The criterion only has to be satisfied at the time of decision. It therefore, prevents the grant of a visa to an applicant who becomes a UNSC-designated person after the time of application but before time of decision as well as preventing grant to persons who are UNSC-designated persons at the time of visa application and decision.

However, a UNSC-designated person will be able to satisfy the criterion in regulation 5 if he or she meets the requirements of subregulation 5(3).

Paragraph 5(3)(b) is based on paragraph 2(b) of the Resolution which relate to:

•       entry to or transit through Australia for the fulfilment of a judicial process; or

•       where the Committee determines on a case by case basis that entry to or transit through Australia is justified.

Regulation 6 - Prescribed ground for cancelling visas (Act s 116)

Regulation 6 sets out a prescribed ground for cancelling a visa.

Subregulation 6(1) provides that regulation 6 applies to a visa granted on, before or after 1 November 2002. This makes it clear that existing visas as well as visas granted on or after 1 November 2002 are:

•       subject to the cancellation ground set out in subregulation 6(2); and

•       subject to the circumstances set out in subregulation 6(3) in relation to which the Minister is not to cancel a visa on the ground prescribed in subregulation 6(2).

Subregulation 6(2) prescribes a ground for cancelling a visa pursuant to paragraph 116(1)(g) of the Act. However, the visa cannot be cancelled on this ground if the Minister is satisfied that the visa holder meets the requirements of paragraph 6(3)(a) or 6(3)(b).

Subject to subregulation 6(3), the Minister may cancel a visa if the Minister is satisfied that the holder of the visa is a UNSC-designated person (whether or not the person was a UNSC-designated person at the time of decision for the grant of a visa).

Subregulation 6(3) sets out the circumstances in which a visa is not to be cancelled under subregulation 6(2). These circumstances are based on subregulation 5(2), except that the circumstances in subregulation 6(3) relate to the holder of a visa rather than an applicant for a visa.

Therefore, if a person holds a visa that was granted prior to 1 November 2002 and that person is a UNSC-designated person (whether or not the person was a UNSC-designated person at the time of decision for the grant of a visa), the Minister is not to cancel the visa if the Minister is satisfied as to the circumstances set out in either paragraph 6(3)(a) or 6(3)(b).