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MIGRATION AMENDMENT REGULATIONS 1999 (NO. 3) 1999 NO. 64
EXPLANATORY STATEMENTSTATUTORY RULES 1999 NO. 64
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 1999 (No. 3)
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:
- paragraph 504(1)(e) of the Act provides that regulations may make provision for and in relation to the giving of documents to, and the lodging of documents with, the Minister or any other person, for the purposes of the Act;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- subsection 500(6E) of the Act provides that the Administrative Appeals Tribunal ("AAT") must notify the Minister of an application to the AAT for review of a decision under section 501, within the period and in the manner specified in the regulations;
- paragraph 501C(3)(b) of the Act provides that the Minister must invite a person whose visa application is refused or whose visa is cancelled under subsection 501(3) or 501A(3) of the Act, to make representations within the period and in the manner ascertained in accordance with the regulations;
- subsection 501C(10) of the Act provides that the regulations may provide that, for
the purposes of section 501C, a person, or a person included in a specified class of
persons, is not entitled to make representations about revocation of an original
decision unless the person is a detainee;
- section 501D of the Act provides that the regulations may provide that in determining whether a person, or person included in a class of persons, passes the character test, any information or material submitted by the person must not be considered unless it is submitted within the period, and in the manner, provided for in the regulations; and
- subsection 501G(3) of the Act provides that a notice under subsection 501G(1) must be given in the prescribed manner.
The purpose of the Regulations is to amend the Migration Regulations 1994 with respect to Protection visas, and to make changes consequential to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998.
In particular, the Regulations will:
- prescribe the manner and time in which the AAT is to notify the Minister of an application for review by the AAT of a decision to cancel, or refuse, a visa on character grounds (item 2);
- prescribe the time and manner in which representations may be made about revocation of decisions refusing visa applications or cancelling visas on character grounds (item 2);
- provide that non-citizens in Australia may not make representations on revocation unless they are in detention (item 2);
- prescribe the manner and time in which information or material must be submitted if it is to be considered by the Minister is determining whether a person passes the character test (item 2);
- prescribe the manner in which a notice of a decision to refuse a visa or cancel a visa on character grounds is to be given (item 2);
- make consequential amendments to clause 4001 of Schedule 4 and clause 5001 of Schedule
5 to the Regulations (items 5 and 6); and
- amend the criteria for a Subclass 866 (Protection) visa to allow for the grant of the visa to a pregnant applicant without the need for the applicant to undergo a chest x-ray (items 3 and 4).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 June 1999.
ATTACHMENT
Regulation 1 -Name of regulations This regulation provides that these regulations are the Migration Amendment Regulations 1999 (No. 3).
Regulation 2 - Commencement
This regulation provides that these regulations commence on 1 June 1999.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that the Migration Regulations 1994 are amended as set out in Schedule 1 to these regulations.
Schedule 1 -Amendments
Item 1 - Division 2.9, heading
This item renames Division 2.9 as "Cancellation or refusal to grant visas".
Item 2 - After Subdivision 2.9.2
This item inserts new Subdivision 2.9.3, entitled "Refusal or cancellation on character grounds".
New regulation 2.51 prescribes the manner and time in which the AAT is to give notification to the Minister of applications for review of decisions made under section 501 of the Act. Regulation 2.51 provides that notification must be:
* in the form set out in subregulation 2.51(3);
* accompanied by a copy of the AAT application;
* either personally delivered to the Secretary or sent to the Secretary by facsimile transmission at a number notified to the AAT; and
* received by the Secretary within 7 working days after the AAT application is made.
New regulation 2.52 prescribes the manner and time in which representations about revocation of decisions must be made. Regulation 2.52 provides that the representations must be made within 7 calendar days after the person is given a notice setting out the original decision. It further provides that the representations must:
* be in English;
* include the name, date of birth, and Immigration file number (or receipt number) of the person to whom the representations relate;
* include the name of the office at which the visa application was made, if the visa was applied for overseas; and include a statement of the reasons on which the person making the representations relies.
Any documents accompanying the representations must be the original document or a certified true copy and, if in a language other than English, be accompanied by an accurate translation.
New subregulation 2.52(7) provides that a non-citizen in Australia may only make representations on revocation if the person is a detainee.
New regulation 2.53 provides that information or material submitted under section 501D of the Act for determining whether a person, or a person included in a specified class of persons, passes the character test must:
* be in writing;
* be the original document or a certified true copy and, if in a language other than English, be accompanied by an accurate translation;
* be submitted within 14 calendar days after the person is invited by the Minister or Immigration to submit information or material; and
* include the name, date of birth and Immigration file number (or receipt number) of the person to whom the decision relates, and the name of the Immigration office at which the visa application was made, if the visa was applied for overseas.
New regulation 2.54 prescribes the manner in which a notice under subsection 501G(1), advising an applicant or former visa holder of a decision to refuse to grant a visa, or cancel a visa, on character grounds, is to be given. Regulation 2.54 provides that:
* for visa applicants, the notice must be served personally or posted to the address last given to the Minister under section 53 of the Act;
* for former visa holders who held the visa for less than 1 year, the notice must be served personally or posted to the person's address last given to Immigration; and
* for former visa holders who held the visa for at least 1 year, Immigration must try to find the person and either the notice must be served personally or posted to the address found by Immigration or to the person's address last given to Immigration.
Item 3 - Schedule 2. Paragraph 866.224(b)
This item is a technical amendment consequential to the insertion of new paragraph 866.224(c), outlined below.
Item 4 - Schedule 2. after paragraph 866.224(b)
This item inserts new paragraph 866.224(c) after paragraph 866.224(b).
New paragraph 866.224(c) is a new criterion which a pregnant applicant for a Protection (Class AZ) visa (Subclass 866 (Protection)) may satisfy in order to be eligible for the grant of such a visa, without the requirement to have undergone a chest x-ray at the time of decision. To satisfy the above, the applicant must have:
had her pregnancy confirmed by a Commonwealth Medical Officer, been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory. A chest clinic is an agency employing chest specialists and registered nurses approved by a State or Territory health authority to assess and, or, treat patients with respiratory diseases, in particular tuberculosis. The requirement that the person be "examined" for tuberculosis does not mean that the person must have had a chest x-ray, signed an undertaking to place herself under the professional supervision of a health authority of a State or Territory and to undergo any necessary treatment; and satisfied the Minister that they should not be required to undergo a chest x-ray examination at this time.
Item 5 - Schedule 4, item 4001
This item substitutes a new clause 4001, which provides that the applicant either:
satisfies the Minister that the applicant passes the character test; or the Minister is satisfied that there is nothing to indicate that the applicant would fail to pass the character test; or the Minister has decided not to refuse the visa despite reasonably suspecting that the applicant does not pass the character test; or the Minister has decided not to refuse the visa despite not being satisfied that the applicant passes the character test.
Item 6 - Schedule 5, paragraph 5001 (b)
This item makes consequential amendments to paragraph 5001 (b) and inserts new paragraph 5001 (c), to include in the special return criterion a person whose visa has been cancelled under section Section 501, 501A or 501B of the Act where the person's substantial criminal record or past and present criminal conduct was a reason for the decision.