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MIGRATION REGULATIONS (AMENDMENT) 1997 NO. 184
EXPLANATORY STATEMENTSTATUTORY RULES 1997 No. 184
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.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(a) of the Act provides that the Regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the Regulations; and
- paragraph 504(1)(c) of the Act provides that the Regulations may make provision for the remission, refund or waiver of fees which may be prescribed by the Regulations, and for exempting persons from the payment of such fees.
In addition, regulations may be made pursuant to the following powers:
- subsection 29(2) of the Act provides that the Regulations may prescribe a period during which the holder of a visa may travel to, enter and remain in Australia;
- subsection 29(3) of the Act provides that the Regulations may prescribe a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;
- subsection 31(1) of the Act provides that the Regulations are to prescribe classes of visas;
- subsection 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified 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 45(1) of the Act provides that the Regulations may make provision in relation to applications for visas;
- 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 for a visa of a specified class in specified circumstances, and in specified circumstances for a visa of a specified class;
- 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;
- subsection 46(2) of the Act provides for prescribing a class of visas, an application for which may be taken under the Regulations to have been validly made; and
- subsection 93(1) of the Act provides that the Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification.
The purposes of the Regulations are to amend the Migration Regulations to:
. allow those Concessional Family visa applicants who were adversely affected by the disallowance of points for English language skills to lodge a further application for a Skilled - Australian Linked (Migrant) (Class AJ) visa (regulations 3, 4, 5 and 6); and
. extend the time in which certain persons may apply for, and be granted, Subclass 435 (Sri Lankan) and 443 (Citizens of Former Yugoslavia) visas to 31 July 1998 for those who entered Australia and held a valid entry permit, or entry visa which had effect as if it were an entry permit, on or before 1 November 1993 (regulations 7 and 8).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 July 1997.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides that these Regulations commence on 1 July 1997.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - New Regulation 2.08D
On 7 November 1996, an amendment to regulation 2.26 was disallowed. The amendment would have enabled Subclass 105, Concessional Family, visa applicants to be given points for English language skills. The disallowance resulted in an anomaly as another amendment, which enabled the spouses of Concessional Family applicants to be given points for English language skills, was not disallowed. Consequently, spouses have been able to obtain a higher points score than applicants who satisfy the primary criteria.
Statutory Rules No. 109 of 1997, commencing on 1 July 1997, changes the name of Subclass 105 from "Concessional family" to "Skilled - Australian Linked". The Statutory Rules also reintroduce the amendment to regulation 2.26 so that points for English language skills could be given to applicants for Skilled - Australian Linked visas.
Regulation 3 inserts new regulation 2.08D so that the Minister may invite certain persons to make further applications for a Subclass 105 visa.
Subregulation 2.08D(1) provides that the regulation applies to persons who had:
* applied for a Subclass 105 visa;
* their application assessed on or after 7 November 1996 and before 1 July 1997;
* an assessed score of more than 94 points but less than 110 points; and
* their application refused or put into the pool under section 93 of the Migration Act 1958.
Subregulation 2.08D(2) enables the Minister to invite a person to whom subregulation (1) applies, to make a further application.
Subregulation 2.08D(3) requires that a further application must be made on or before 31 December 1997.
Subregulation 2.08D(4) provides that, in the case of a further application, an applicant's score for Parts 1, 2, 4, 5, 6 and 7 of Schedule 6 will be the same as the score for that application which was either refused or "pooled" between 7 November 1996 and 30 June 1997. This ensures that an applicant would not be disadvantaged by time having elapsed. For example, persons who may now be in an older age bracket and who thereby would be allocated fewer points are not disadvantaged.
Subregulation 2.08D(5) provides that there is no first instalment of the visa application charge ("VAC") payable for making a further application. A second instalment of the VAC of $2200, however, is payable unless the applicant has functional English in which case no charge applies.
Regulation 4 - Regulation 2.26 (Prescribed qualifications and prescribed number of points)
Regulation 5 - Schedule 1 (Classes of visas)
Regulations 4 and 5 insert notes after subregulation 2.26(2) and paragraph 1128A(2)(b) to refer decision-makers to new regulation 2.08D inserted by these Regulations.
Regulation 6 - Schedule 2, Part 105 (Skilled - Australian Linked)
This regulation provides that the Occupations Requiring English (ORE) List which is applicable to persons who make a further application under regulation 2.08D, is that list which applied as at 7 November 1997 (the date that the amendment to regulation 2.26 was disallowed) being the ORE list which was gazetted on 31 August 1994.
Regulation 7 - Schedule 2, Part 435 (Sri Lankan)
These amendments derive from the Government's decision to resolve the status of certain groups of people who, for humanitarian reasons, have been allowed to remain in Australia as long-term temporary residents. The amendments will allow Sri Lankans who arrived lawfully in Australia on or before 1 November 1993 to apply for a further visa to extend the period in which they are entitled to stay in Australia from 31 July 1997 to 31 July 1998.
Subregulation 7.1 omits subclause 435.213 of Part 435 of Schedule 2 to the Regulations and substitutes new subclause 435.213 so that "a time of application" criterion is that the applicant must have entered Australia, on or before 1 November 1993, as the holder of an entry permit or as the holder of a entry visa which had effect as if it were an entry permit.
Subregulation 7.2 amends subclause 435.214 to omit "31 July 1997" and substitute "31 July 1998".
Subregulation 7.3 amends subclause 435.511 to omit "31 July 1997" and substitute "31 July 1998".
Regulation 8 - Schedule 2, Part 443 (Citizens of Former Yugoslavia)
These amendments derive from the Government's decision to resolve the status of certain groups of people who, for humanitarian reasons, have been allowed to remain in Australia as long-term temporary residents. The amendments will allow citizens of Former Yugoslavia who arrived lawfully in Australia on or before 1 November 1993 to apply for a further visa to extend the period in which they are entitled to stay in Australia from 31 July 1997 to 31 July 1998.
Subregulation 8.1 omits subclause 443.213 of Part 443 of Schedule 2 to the Regulations and substitutes new subclause 443.213 so that "a time of application" criterion is that the applicant must have entered Australia, on or before 1 November 1993, as the holder of an entry permit or as the holder of a entry visa which had effect as if it were an entry permit.
Subregulation 8.2 amends subclause 443.214 to omit "31 July 1997" and substitute "31 July 1998".
Subregulation 8.3 amends subclause 443.511 to omit "31 July 1997" and substitute "31 July 1998".