Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1995 NO. 3

STATUTORY RULES 1995 No. 3

Issued by the Authority of the Minister for Immigration and Ethnic 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.

Subsection 91D(1) in Subdivision AI of the Act provides that a country is a 'safe third country' in relation to a non-citizen if the country is prescribed under paragraph 91D(1)(a) as a safe third country in relation to the non-citizen or in relation to a class of persons of which the non-citizen is a member, and the non-citizen has a connection prescribed under paragraph 911D(1)(b) with the country. The purpose of the Regulations is:

•       to prescribe the People's Republic of China (PRC) as a safe third country in relation to a person who:

-       is, or has been, a Vietnamese refugee settled in the PRC, or a person who is a close relative of, or is dependent on, a person who is, or has been, a Vietnamese refugee settled in the PRC, as covered by the understanding constituted by the Memorandum of Understanding between Australia and the PRC the text of which is set out in Schedule 11 of the Migration Regulations which is inserted by the proposed Regulations; and

•       to provide that a person referred to above has a prescribed connection with the PRC if the person, or parent of the person, resided in the PRC at any time before the person entered Australia.

Subdivision AI of the Act ensures that asylum seekers who have had access to protection in another country should not have access to Australia's system of protection, other than in exceptional circumstances.

Subdivision AI of the Act operates when a non-citizen who is covered by the Subdivision seeks protection in Australia by applying, or purporting to apply, for a protection visa. If the Subdivision applies to a non-citizen the effect is that, despite any other provision of the Act, certain visa applications by such non-citizens are not valid. If the non-citizen was not immigration cleared on last entry (unauthorised arrivals) the non-citizen cannot make a valid application for any visa. If the non-citizen was immigration cleared on last entry (those who entered Australia with permission) the non-citizen is only prevented from making a valid protection visa application.

The bar on an application by a nod-citizen to whom Subdivision AI applies is subject only to the Minister's discretion to allow a valid visa application in exceptional circumstances. The Minister has the discretion, if he or she thinks it is in the public interest to do so, to give a particular non-citizen written notice allowing that non-citizen to make a valid application. If the Minister determines that a valid application may be made, Parliament must be informed of the reasons for the determination. A statement is to be laid before each House of the Parliament within the time limits provided for in subsection 91F(5) of the Act.

Subdivision AI of the Act applies to non-citizens in Australia who are covered by, inter alia, an agreement, relating to asylum seekers, between Australia and a country which is a safe third country for the non-citizen and the non-citizen has a prescribed connection with the country, unless the Minister has exercised his or her discretion as outlined in the above paragraph.

Australia has recently concluded a Memorandum of Understanding with the PRC which is an agreement for the purposes of Subdivision AI of the Act. The text of the Memorandum of Understanding is inserted in the Migration Regulations by the Regulations.

The effect of the Regulations is that Subdivision AI of the Act will apply to a person within the class of persons for whom the PRC is prescribed as a safe third country and the person has a prescribed connection with the PRC.

Details of the Regulations are set out in the Attachment.

The Regulations commence on gazettal.

ATTACHMENT

Regulation 1 (Amendment)

This regulation provides that the Migration Regulations are amended as set out in these Regulations.

Regulation 2 (New Regulation 2.12A)

This regulation inserts a new regulation 2.12A (Safe third country and prescribed connection (subsection 91D(1) of the Act)) into the Migration Regulations.

The new paragraph 2.12A(1)(a) provides that the PRC is a safe third country in relation to a person who is, or has been, a Vietnamese refugee settled in the PRC, or a person who is a close, relative of, or is dependent on, a person who is, or has been, a Vietnamese refugee settled in the PRC, as covered by the Memorandum of Understanding between Australia and the PRC the text of which is set out in the new Schedule 11, inserted in the Migration Regulations by regulation 3 of these Regulations.

The new paragraph 2.12A(1)(b) provides that a person referred to in paragraph 2.12A(1)(a) has a prescribed connection with the PRC if the person, or a parent of the person, resided in the PRC at any time before the person entered Australia.

The new subregulation 2.12A(2) provides that in subregulation 2.12A(1) the use of the word 'Vietnamese' is as a reference to nationality or country of origin and not as an ethnic description.

Regulation 3 (New Schedule 11)

This regulation inserts a new Schedule 11 (Memorandum of Understanding between Australia and the PRC) into the Migration Regulations. The Schedule contains the text of the Memorandum of Understanding between the Department of Immigration and Ethnic Affairs of Australia and the Ministry of Civil Affairs of the People's Republic of China. The Memorandum of Understanding constitutes an understanding, which is an agreement, between Australia and the PRC for the purposes of Subdivision AI of the Act.