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MIGRATION AMENDMENT REGULATIONS 2003 (NO. 10) 2003 NO. 362
STATUTORY RULES 2003 NO. 362
Migration Act 1958
Migration Amendment Regulations 2003 (No. 10)
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 by the Act are required or permitted to be prescribed 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 provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to introduce a new class of Bridging Visa to allow unlawful non-citizens:
• to be released from immigration detention where they may be able to help with investigations into people trafficking-related, sexual servitude or deceptive recruiting offences;
• to stay lawfully in Australia while investigations are undertaken and a decision is made whether to grant them a Criminal Justice Stay Visa.
The new visa class would also be available to immediate family members of the person who may be able to help with investigations.
Details of the Regulations are set out in Attachment B.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commence on 1 January 2004.
0307525A-031201Z
ATTACHMENT A
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 by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, the following provisions may apply:
• subsection 29(1) of the Act provides that, subject to the Act, the Minister may grant a non-citizen a visa to do either or both of the following:
- travel to and enter Australia
- remain in Australia.;
• subsection 31(1) of the Act provides that the regulations prescribe classes of visas;
• subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class;
• subsection 31(4) of the Act provides that the regulations may prescribe whether visas of a particular class are visas to travel to and enter Australia, or to remain in Australia, or both;
• subsection 31(5) of the Act provides that the regulations specify that a visa is a visa of a particular class;
• 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;
• subsection 41(1) of the Act provides that the
regulations may provide that visas or visas of a specified class are subject to
specified conditions;
• paragraph 41(2)(b) of the Act provides that, without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
- any work; or
- work other than specified work; or
- work of a specified kind;
• section 46 of the Act deals with when an application for a visa is a valid application, and in particular:
- subsection 46(3) provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;
- paragraph 46(4)(a) provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application;
- paragraph 46(4)(b) provides that, without limiting subsection 46(3), the regulations may also prescribe how an application for a visa of a specified class must be made;
- paragraph 46(4)(c) provides that, without limiting subsection 46(3), the regulations may also prescribe where an application for a visa of a specified class must be made;
- paragraph 46(4)(d) provides that, without limiting
subsection 46(3), the regulations may also prescribe where an applicant must be
when an application for a visa of a specified class is made;
• subsection 48(1) of the Act provides that A non-citizen in the migration zone who does not hold a substantive visa and either:
- after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 501A or 501B for which the non-citizen had applied (whether or not the application has been finally determined); or
- held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas)
may, subject to the regulations, apply for a visa of a class prescribed for the
purposes of section 48, but not for a visa of any other class;
• subsection 68(1) of the Act provides that, subject
to subsection 68(2), a visa has effect as soon as it is granted. Subsection
68(2) provides that a visa may provide that it comes into effect at the
beginning of a day, being a day after its grant that is specified in the visa
or when an event, specified in the visa, happens;
• subsection 68(4) of the Act provides that a bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
- the non-citizen does not hold a substantive visa that is in effect; and
- either:
Ø the non-citizen does not hold any other bridging visa; or
Ø the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant;
• section 70 of the Act provides that, subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa; and
• subsection 71(1) of the Act provides that evidence
of a visa is to be given in a way prescribed for giving the evidence;
• subsection 72(1) of the Act provides that, for Subdivision AF of the Act, `eligible non-citizen' means a non-citizen who:
- has been immigration cleared; or
- is in a prescribed class of persons; or
- the Minister has determined to be an eligible non-citizen;
• section 73 of the Act provides that, if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
- during a specified period; or
- until a specified event happens;
• subsection 75(1) of the Act provides that, if:
- (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
- (b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa
the non-citizen is taken to have been granted a bridging visa of the prescribed
class on prescribed conditions (if any) at the end of that period;
• paragraph 504(1)(e) of the Act provides that the Governor-General may, without limiting the generality of the stem of subsection 504(1), make regulations making provision for and in relation to:
- the giving of documents to;
- the lodging of documents with; or
- the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of the Act.
ATTACHMENT B
DETAILS OF MIGRATION AMENDMENT REGULATIONS 2003 (NO. 10)
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2003 (No. 10).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 January 2004.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Principal Regulations).
Regulation 4 - Transitional
This regulation provides that the amendments made by all items in Schedule 1 to these Regulations apply to applications made on or after 1 January 2004.
Schedule 1 - Amendments
Item [1] - Regulation 2.10A, heading
This item substitutes a new heading for regulation 2.10A in Part 2 of the Principal Regulations. The purpose of this amendment is to differentiate between existing regulation 2.10A which relates to applications for a Bridging E (Class WE) visa and new regulation 2.10B (inserted by these Regulations) which relates to applications for a Bridging F (Class WF) visa.
Item [2] - After regulation 2.10A
This item inserts new regulation 2.10B in Part 2 of the Principal Regulations. New regulation 2.10B relates to the requirement for persons who lodge an application for a Bridging F (Class WF) visa while they are in immigration detention to give notice of the lodgement.
New subregulation 2.10B(1) provides that new regulation 2.10B applies in the case of an application for a Bridging F (Class WF) visa that is made by a person who is in immigration detention.
New subregulation 2.10B(2) provides that the person lodging the application (whether or not the person is the applicant) must give written notice of the application to an officer of Immigration appointed by the Secretary to be an authorised officer for this regulation.
It is intended that senior Immigration officials will be appointed for the purposes of new regulation 2.10B, that is, to receive written notice of lodgement of relevant Bridging F (Class WF) visa applications.
New regulation 2.10B also links to:
• new paragraph 1306(3)(f), inserted by these Regulations; and
• regulation 2.24, as amended by these
Regulations;
such that, once the person lodging an application for a Bridging F (Class WF) visa has given written notice of the lodgement to the senior Immigration official:
• the applicant satisfies the requirement in new paragraph 1306(3)(f), which is one of the requirements for making a valid application for a Bridging F (Class WF) visa; and
• the two working day period specified in subregulation 2.24(2), after which time a Bridging F (Class WF) visa is taken to have been granted, starts to run.
More details on new paragraph 1306(3)(f) and amendments to regulation 2.24 are set out below.
Item [3] - After paragraph 2.12(1)(m)
This item, through new paragraph 2.12(1)(ma), inserts a reference to new Bridging F (Class WF) visa (introduced by these Regulations) in subregulation 2.12(1) in Part 2 of the Principal Regulations. Subregulation 2.12(1) specifies what classes of visa are prescribed for the purposes of section 48 of the Act. Section 48 of the Act provides that a non-citizen in the migration zone who does not hold a substantive visa and either:
• after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 501A or 501B of the Act for which the non-citizen had applied (whether or not the application has been finally determined); or
• held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas) of the Act;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48 of the Act, but not for a visa of any other class.
The purpose of this amendment is to ensure that persons who would otherwise be subject to the application bar in section 48 of the Act will still be able to make an application for a Bridging F (Class WF) visa.
Item [4] - Paragraph 2.21(2)(e)
This item makes a technical amendment to paragraph 2.21(2)(e) of Part 2 of the Principal Regulations which is consequential to the insertion of new paragraph 2.21(2)(f) by these Regulations. This item replaces the full stop after the word `visa' in paragraph 2.21(2)(e) with a semi-colon.
Item [5] - After paragraph 2.21(2)(e)
This item inserts a reference to the new Bridging F (Class WF) visa class through new paragraph 2.21(2)(f) in regulation 2.21 of Part 2 of the Principal Regulations. The amendment has the result that the new Bridging F (Class WF) visa class, introduced by these Regulations, is the least beneficial class of visa for the purposes of subparagraph 68(4)(b)(ii) of the Act.
Subsection 68(4) of the Act relates to a bridging visa held by a non-citizen that has ceased to be in effect under subsection 82(3) of the Act, and provides that a bridging visa (the reactivated bridging visa), that has so ceased to be in effect will come into effect again during the visa period for the visa if the non-citizen does not hold a substantive visa that is in effect and either:
• the non-citizen does not hold any other bridging visa; or
• the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
By listing the new class last in a list of 6 bridging visas, the amendment provides that all other classes of bridging visas are more beneficial than a Bridging F (Class WF) visa, for subsection 68(4) of the Act. This means that, for subsection 68(4) of the Act, all other classes of bridging visas will be reactivated before a Bridging F (Class WF) visa is reactivated.
Item [6] - Subregulation 2.24(1)
This item substitutes a new version of subregulation 2.24(1) in Part 2 of the Principal Regulations to add a reference to new Bridging F (Class WF) visa class, introduced by these Regulations.
Subregulation 2.24(1) lists the visa classes which are prescribed for paragraph 75(1)(a) of the Act. As a result of the amendment, there are now two prescribed visa classes, Bridging E (Class WE) and Bridging F (Class WF).
Paragraph 75(1)(a) of the Act deals with the class of bridging visa that may be granted to a non-citizen in immigration detention. Subsection 75(1) of the Act more generally provides that if an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a class mentioned in paragraph 75(1)(a) and the Minister does not make a decision within the prescribed period to grant or refuse to grant the bridging visa, the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
Subregulation 2.24(2) provides that the prescribed period for subsection 75(1) of the Act is two working days.
The purposes of this amendment are to:
• include Bridging F (Class WF) as a class of bridging visa that can be granted to a non-citizen in immigration detention; and
• provide incentive to the decision-maker of the Bridging F (Class WF) visa application where the applicant is in immigration detention to decide the application within two working days.
Item [7] - Subregulation 2.24(2), note
This item substitutes a new version of the note to subregulation 2.24(2) in Part 2 of the Principal Regulations to add a reference to new Bridging F (Class WF) visa, introduced by these Regulations.
The note to subregulation 2.24(2) sets out where, for the purposes of section 75 of the Act, the prescribed conditions for the bridging visas referred to in subregulation 2.24(1) are located in Schedule 2 to the Principal Regulations.
The purpose of this amendment is to provide a note that, where a Bridging F (Class WF) visa is taken to have been granted under section 75 of the Act, the conditions that are attached to the bridging visa are those specified in new clause 060.611 (introduced by these Regulations) in Schedule 2 to the Principal Regulations.
Item [8] - Schedule 1, after item 1305
This item inserts new item 1306 in Schedule 1 to the Principal Regulations. New item 1306 provides the requirements for making a valid application for a Bridging F (Class WF) visa. Those requirements are as follows.
Form
New subitem 1306(1) provides that the required form for an application for a Bridging F (Class WF) visa is form 1239.
Fee
New subitem 1306(2) provides that the visa application charge for an application for a Bridging F (Class WF) visa is nil.
Where to apply
New paragraph 1306(3)(a) provides that the application must be made in Australia but not in immigration clearance. The meaning of `immigration clearance' is outlined in section 172 of the Act. New paragraph 1306(3)(b) provides that an applicant must be in Australia but not in immigration clearance to make a valid application.
Other requirements
Ø Previous Bridging F (Class WF) visas
New paragraph 1306(3)(c) provides that, for a person to meet the requirements for making a valid application, an applicant does not hold a Bridging F (Class WF) visa and has not held a Bridging F (Class WF) visa since he or she last entered Australia. The purpose of this amendment is to ensure that a Bridging F (Class WF) visa can only be granted to a person once.
Ø `Person of interest'
New paragraph 1306(3)(d) requires that either:
• an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that the applicant is a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude, or deceptive recruiting; or
• the applicant is a member of the immediate family of a person who an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, is a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude or deceptive recruiting.
Relevant definitions for new paragraph 1306(3)(d) are:
• `member of the immediate family', which is defined in regulation 1.12AA of the Principal Regulations which provides that a person 'A' is a member of the immediate family of another person 'B' if:
- A is a spouse of B; or
- A is a dependent child of B; or
- A is a parent of B, and B is not 18 years or more;
• `spouse', `dependent child' and `parent', which are defined in regulation 1.03; and
• `Immigration', which is defined in regulation 1.03 as the Department of Immigration and Multicultural and Indigenous Affairs.
It is intended that the requirement in new subparagraph 1306(3)(d)(i) is fulfilled once the police have, following enquiries, made a determination that the person is of interest in relation to investigations into offences involving people trafficking, sexual servitude or deceptive recruiting, and have subsequently notified Immigration in writing.
It is intended that a `person of interest' include both persons who have committed people trafficking, sexual servitude or deceptive recruiting offences, as well as persons who have not committed any relevant offences but who might be able to provide help with investigations into such an offence or alleged offence. Therefore, a Bridging F (Class WF) visa could be granted to a person in either category, if they otherwise meet all the criteria for the grant of the visa.
New subparagraph 1306(3)(d)(ii) provides that members of the immediate family of a person whom the police are interested in are also able to make valid applications and, if they meet all the criteria for the grant of the visa, potentially be released from detention along with the person whom the police are primarily interested in.
Ø Care arrangements
New paragraph 1306(3)(e) requires that an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that suitable arrangements have been made for the care, safety and welfare of the applicant for the proposed period of the Bridging F (Class WF) visa. This provision is consistent with a whole of government approach to combating people trafficking and related offences.
Ø Notice of lodgement of application
New paragraph 1306(3)(f) provides that, if the person making an application for a Bridging F (Class WF) visa is in immigration detention, the authorised officer to whom notice was given under new subregulation 2.10B(2) has been informed of the lodgment of the application.
The purpose of this amendment is to provide that the two-day period referred to in subregulation 2.24(2) (as amended by these Regulations) commences once the authorised officer has been given written notice of the lodgement of the application.
Ø Combined applications by immediate family members
New paragraph 1306(3)(g) provides that an application by a person claiming to be a member of the immediate family of a person who is an applicant for a Bridging F (Class WF) visa may be made at the same time and place as, and combined with, the application by that person.
New paragraph 1306(3)(g) also links to new clause 060.321 (introduced by these Regulations). Clause 060.321 provides that an application from a member of the immediate family member of a primary applicant should have made a combined application for a Bridging F (Class WF) visa with that primary applicant. The intention is that applications for a Bridging F (Class WF) visa from both primary and secondary applicants can be assessed at the same time and using the same available information.
New item 1306 also lists the relevant visa subclasses within that visa class. New subitem 1306(4) provides that for Bridging F (Class WF), Subclass 060 (Bridging F) is the only subclass within the class.
Item [9] - Schedule 2, after Part 051
This item inserts new Part 060 in Schedule 2 to the Principal Regulations which sets out the criteria for grant of a new Subclass 060 (Bridging F) visa, introduced by these Regulations.
Division 060.1 - Interpretation
The note in Division 060.1 provides that there are no interpretation provisions specific to new Part 060 of Schedule 2 to the Principal Regulations.
Division 060.2 - Primary Criteria
Ø Criteria to be satisfied at time of application
This division specifies the primary criteria that must be met for the grant of a Subclass 060 (Bridging F) visa.
New Subdivision 060.21 provides that there are no primary criteria to be satisfied at the time of application. The only relevant criteria are those to be satisfied at time of decision. These are set out in new Subdivision 060.22.
Ø Criteria to be satisfied at time of decision
New clause 060.221 requires that the Minister is satisfied that the applicant is a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude, or deceptive recruiting.
The intention is that the Minister will be acting on advice from the police force that provided the written advice for the purposes of new subparagraph 1306(3)(d)(i), at the time the application was lodged. The Minister will, however, retain discretion as to whether or not the Minister is satisfied the person is of interest in relation to people trafficking related offences.
New clause 060.222 provides that the Minister is satisfied that suitable arrangements have been made for the care, safety and welfare of the applicant for the proposed period of the visa.
The purpose of this amendment is to ensure that applicants are not released from immigration detention without appropriate arrangements for their care, safety and welfare. Again, the intention is that the Minister will be acting on advice from the police force that provided the written advice for the purposes of new paragraph 1306(3)(e), at the time the application was lodged. The Minister will, however, retain discretion as to whether there are suitable arrangements in place for the care, safety and welfare of the applicant for the proposed period of the visa.
New clause 060.223 provides that the Minister is satisfied that if the bridging visa is granted, the applicant will abide by the conditions imposed on it.
Division 060.3 - Secondary Criteria
Ø Criteria to be satisfied at time of application
New Subdivision 060.31 provides that there are no secondary criteria to be satisfied at the time of application. As for a primary applicant, the only relevant criteria are those to be satisfied at time of decision. These are set out in new Subdivision 060.32.
Ø Criteria to be satisfied at time of decision
New clause 060.321 requires that an applicant who is a member of the immediate family of a person in relation to whom the primary criteria in Subdivision 060.22 are satisfied has made a combined application with that person.
New clause 060.322 provides that the Minister is satisfied that the applicant continues to be a member of the immediate family of a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude, or deceptive recruiting, as the applicant was required to be in order to make a valid application under new subparagraph 1306(3)(d)(ii).
New clause 060.323 provides that the Minister is satisfied that suitable arrangements have been made for the care, safety and welfare of the applicant for the proposed period of the visa. The purpose of this amendment is to ensure that the applicants are not released from immigration detention without any arrangements for their care, safety and welfare.
As for an application from a primary applicant, the intention is that, for the purposes of assessing new clause 060.323, the Minister will be acting on advice from the police force that provided the written advice for the purposes of new paragraph 1306(3)(e), at the time the application was lodged. However, as for an application from a primary applicant, the Minister will retain discretion as to whether there are suitable arrangements in place for the care, safety and welfare of the applicant for the proposed period of the visa.
New clause 060.324 requires that the Minister is satisfied that, if the bridging visa is granted, the applicant will abide by the conditions imposed on it.
Division 060.4 - Circumstances applicable to grant
New clause 060.411 provides that the applicant must be in Australia when the visa is granted.
Division 060.5 - When visa is in effect
New clause 060.511 provides that the bridging visa comes into effect on grant and permits the holder to remain in Australia until the earliest of the following:
• a date specified by the Minister;
• the end of 30 days after the date of grant;
• if, in relation to a visa holder who met the primary criteria, an officer of the police force that previously told Immigration in writing under new paragraph 1306(3)(d) of Schedule 1 to the Principal Regulations that the holder is a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude or deceptive recruiting has told Immigration, in writing, that the holder is no longer such a person of interest, when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, that the holder is no longer a person of interest; or
• if, in relation to a visa holder who is a member of the immediate family of a person who met the primary criteria, an officer of the police force that previously told Immigration in writing under new paragraph 1306(3)(d) of Schedule 1 to the Principal Regulations that the person is a person of interest in relation to an offence or an alleged offence involving people trafficking, sexual servitude or deceptive recruiting has told Immigration, in writing, that the person is no longer such a person of interest, when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, that the person is no longer a person of interest.
Division 060.6 - Conditions
New clause 060.611 provides that, in the case of a Subclass 060 (Bridging F) visa that is taken to have been granted by operation of section 75 of the Act, conditions 8101 and 8402 are to apply.
New clause 060.612 provides that, where a Subclass 060 (Bridging F) visa in circumstances other than by operation of section 75 of the Act, conditions 8101 and 8401 must be imposed, and any one or more of conditions 8403, 8505, 8506, 8507, 8510, and 8511 may be imposed.
Visa conditions are contained in Schedule 8 to the Principal Regulations. Relevant to these Regulations:
• condition 8101 specifies that the holder must not engage in work in Australia;
• condition 8401 specifies that the holder must report at a time or times and at a place specified by the Minister for the purpose;
• condition 8402 specifies that the holder must report to an Immigration office within 5 working days of grant, and on the first working day of every week thereafter;
• condition 8403 specifies that the holder must visit an Immigration office specified by the Minister for the purpose, within the time specified by the Minister for the purpose, to have evidence of the visa placed in the holder's passport;
• condition 8505 specifies that the holder must continue to live at the address specified by the holder before grant of the visa;
• condition 8506 specifies that the holder must notify Immigration at least 2 working days in advance of any change in the holder's address;
• condition 8507 specifies that the holder must, within the period specified by the Minister for the purpose pay, or make an arrangement that is satisfactory to the Minister to pay, the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder's detention;
• condition 8510 specifies that the holder must, within the time specified by the Minister for the purpose, either show an officer a passport that is in force, or
make an arrangement satisfactory to the Minister to obtain a passport; and
• condition 8511 specifies that the holder must, within the time specified by the Minister for the purpose, show an officer a ticket for travel to a country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival.
Division 060.7 - Way of giving evidence
New clause 060.711 provides that no evidence of the grant of a Subclass 060 (Bridging F) visa need be given unless the visa holder asks for it.
New clause 060.712 provides that, if evidence of grant is given, it is to be given by a visa label attached to a passport.