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MIGRATION REGULATIONS (AMENDMENT) 1998 NO. 104
EXPLANATORY STATEMENTSTATUTORY RULES 1998 NO. 104
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
in relation to the furnishing of information, and obtaining information with
respect to persons entering and leaving Australia and persons arriving or
departing from an airport in Australia on an aircraft operated by an international
air carrier.
In addition, regulations may be made pursuant to the following powers:
- 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 45(1) of the Act provides that the regulations may make provision in
relation to applications for visas;
- 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;
- subsection 91D(1) of the Act provides that a country is a "safe third country" in relation to a noncitizen 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 noncitizen has a connection prescribed under paragraph 91D(1)(b) with the country;
- paragraph 109(1)(c) of the Act provides for circumstances to be prescribed, to which the Minister must have regard in deciding whether a visa granted on the basis of incorrect information provided by the applicant is to be cancelled;
- paragraph 116(1)(g) of the Act provides for the grounds for cancelling a visa to be prescribed; and
- paragraph 166(1)(b) of the Act provides that the regulations may require information to be given to a clearance officer by persons who enter Australia.
The purposes of the Regulations are to amend the Migration Regulations to reflect the Government's decision to streamline requirements for visa applicants; prevent abuse of temporary visas; maintain parity in relation to visa applications; and to make a number of procedural and minor technical amendments.
In particular, the Regulations will:
- remove the age criterion at the time of decision for orphan relatives (regulations 4,
13 and 16);
- prescribe the People's Republic of China ("PRC") as a "safe third country" for
certain Vietnamese refugees settled in the PRC (regulations 5, 6, and 20);
- provide that an additional 5 points must be added to an applicant's score when
assessing an applicant for a Subclass 105 (Skilled - Australian Linked) or
Subclass 126 (Independent) visa if they have an award obtained after at least
1 year full-time study in Australia (regulations 7 and 17);
- amend regulations 2.33 and 2.38 to include additional Department of Social
Security payments as a consequence of amendments to Social Security legislation
(regulations 8 and 9);
- enable the Minister to cancel temporary visas if satisfied that the visa holder does
not intend a genuine temporary visit for tourist or business purposes, or other
purposes (other than medical treatment purposes) (regulation 10);
- minimise any confusion relating to the character question asked on the inbound
passenger card (regulation 11);
- allow an application for a Confirmatory (Temporary) (Class TD) visa also to be
an application for a Bridging A (Class WA) visa (subregulation 12.3);
- provide that an applicant for a Subclass 106 (Regional Linked) visa may be a grandchild or first cousin of person sponsoring them for the visa (regulation 14);
- streamline the entry provisions for the grant of Subclass 420 (Entertainment) visas for entertainers seeking to enter Australia to take part in film or television productions which are fully funded offshore (regulation 15);
- provide that the amount of the second instalment of the visa application charge for certain visa applications made on or after 1 July 1998 is to be refunded in accordance with the amounts prescribed under Schedule 8A (regulation 18);
- index certain fees and charges and implement certain Budget decisions in relation to visitor visa application charges (subregulation 12.2 and regulation 21);
- increase fees for assessment of a person's work qualifications and experience (regulation 21);
- repeal certain humanitarian visa classes and subclasses (regulations 22, 23, and 24); and
- make minor technical amendments (regulations 3, 19 and 25 and subregulation 12.1).
Details of the Regulations are set out in the Attachment.
Parts 1 and 2 of the Regulations commence on 1 July 1998 and Part 3 of the Regulations commences on 1 August 1998.
ATTACHMENT
PART 1 - PRELIMINARY
Regulation 1 - Commencement
This regulation provides that Parts 1 and 2 of these Regulations commence on 1 July 1998 and Part 3 of these Regulations commences on 1 August 1998.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
PART 2 - AMENDMENTS COMMENCING ON 1 JULY 1998
Regulation 3 - Regulation 1.03 (Interpretation)
This regulation amends the definition of "APEC economy" to replace the reference to "Chile" with the correct name "the Republic of Chile".
Regulation 4 - Regulation 1. 14 (Orphan relative)
This regulation omits subparagraph 1.14(a)(ii) and substitutes new subparagraph 1.14(a)(ii). The effect of the new subparagraph is to provide that a person must not have a spouse. If a person has a spouse, then that person is not able to satisfy the definition of "orphan relative" in regulation 1.14. The term "spouse" is defined in regulation 1.15A of the Migration Regulations.
Regulation 5 - Regulation 2.12B (Safe third country, prescribed connection and cut off day (subsection 91D(1) and paragraph 91G(1)(b) of the Act))
Regulation 5 omits regulation 2.12B from the Migration Regulations. Under subsection 91D(4) of the Migration Act 1958 any regulation made pursuant to paragraph 91D(1)(a), prescribing a country as a "safe third country", ceases to have effect 2 years after the regulation commences. Regulation 2.12B commenced on 1 July 1996 and consequently ceases to have effect on 1 July 1998.
Regulation 6 - New Regulation 2.12BA
This regulation inserts a new regulation 2.12BA (Safe third country and prescribed connection (Act, s 91D(1)) into the Migration Regulations.
New subregulation 2.12BA(1) provides that the PRC is a safe third country in relation to a person who:
* either:
- is, or has been, a Vietnamese refugee settled in the PRC; or
- 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 agreement between Australia and the PRC (paragraph 2.12BA(1)(a)); and
* entered Australia without lawful authority on or after 1 January 1996 (paragraph 2.12BA(1)(b)).
The term "agreement between Australia and PRC' is defined for this, regulation in the new paragraph 2.12BA(3)(a).
New subregulation 2.12BA(2) provides that for paragraph 91D(1)(b) of the Act, a person referred to in subregulation 2.12BA(1) 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.
Paragraph (a) of new subregulation 2.12BA(3) provides a definition of "agreement between Australia and PRC' which is constituted by the Memorandum of Understanding (the English text of which is set out in Schedule 11 to the Migration Regulations) together with an exchange of letters between representatives of Australia and the PRC dated 9 April 1998 and 10 April 1998, respectively, (the texts of which are set out in the Schedule 12 to the Migration Regulations).
Paragraph (b) of new subregulation 2.12BA(3) provides that the word "Vietnamese" is a reference to nationality or country of origin, and is not an ethnic description.
Regulation 7 - Regulation 2.26 (Prescribed qualifications and prescribed number of points)
This regulation inserts new paragraph (d) into subregulation 2.26(3). New paragraph 2.26(3)(d) provides that applicants for either a Subclass 105 (Skilled - Australian Linked) or Subclass 126 (Independent) visa must be granted an additional 5 points to the applicants' score under Schedule 6 if:
* the applicant holds an award (that is an Australian degree, higher degree, diploma or trade certificate); and
* that award was obtained after a period of at least 1 year full-time study in Australia.
Regulation 8 - Regulation 2.33 (Effect of assurance of support)
This regulation amends regulation 2.33 so that an assurance of support under regulation 2.33 also applies to Widow Allowance, PP (partnered), Mature Age Allowance, Partner Allowance and Parenting Allowance under the Social Security Act 1991, and Youth Training Allowance under the Student and Youth Assistance Act 1973. "PP (partnered)" is a component of the new Parenting Payment, which was introduced via the Social Security Legislation Amendment (Parenting Payment and Other Measures) Act 1997.
Existing assurers who have already lodged an assurance of support in relation to visa applications lodged prior to 20 December 1991 will not be liable to repay any benefits added to regulation 2.33 by these amendments. However, there are still some unfinalised visa applications made prior to 20 December 1991 for which no assurances have yet been provided. It is to these unfinalised applications that these amendments are intended to apply.
Regulation 9 - Regulation 2.38 (Liability of person giving assurance of support)
This regulation amends regulation 2.38 so that an assurance of support under regulation 2.38 also applies to PP (partnered) and Mature Age Allowance under the Social Security Act 1991. "PP (partnered)" is a component of the new Parenting Payment, which was introduced via the Social Security Legislation Amendment (Parenting Payment and Other Measures) Act 1997.
This amendment will apply to:
* unfinalised visa applications made after 19 December 1991 for which no assurances have yet been provided; and
* new visa applications made after the commencement of this regulation.
Regulation 10 - Regulation 2.43 (Grounds for cancellation of visa (Act, s 116))
This regulation inserts new paragraphs (i), (j) and (k) into subregulation 2.43(1) to enable the Minister to cancel certain temporary visas if the Minister is satisfied that the visa holder does not intend a genuine temporary visit for tourist or business purposes, or other purposes (other than medical treatment purposes).
New paragraph 2.43(1)(i) enables the Minister to cancel a: Subclass 456 (Business (Short Stay)); Subclass 956 (Electronic Travel Authority (Business Entrant - Long Validity)); or Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity)) visa, if the Minister is satisfied that the visa holder did not have (at the time of grant of the visa), or has ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes.
New paragraph 2.43(1)F(j) enables the Minister to cancel a: Subclass 676 (Tourist (Short Stay)); or Subclass 686 (Tourist (Long Stay)) visa, if the Minister is satisfied that the visa holder did not have (at the time of grant of the visa), or has ceased to have, an intention only to visit, or remain in, Australia temporarily for the purpose of visiting an Australian citizen, or an Australian permanent resident who is a parent, spouse, child, brother or sister of the visa holder or for another purpose (other than for business or medical treatment purposes).
New paragraph 2.43(1)(k) enables the Minister to cancel a Subclass 976 (Electronic Travel Authority (Visitor)) visa if the Minister is satisfied that the visa holder did not have (at the time of grant of the visa), or has ceased to have, an intention only to visit Australia temporarily for tourism purposes.
Regulation 11 - Regulation 3.02 (Passenger card)
This regulation omits paragraphs 3.02(1)(b) and (f) and substitutes a new paragraph (b) which provides that passenger cards must ask whether the passenger has any criminal conviction/s. The omitted paragraph (b) required passengers to declare any conviction/s for which the sentence/s totalled 12 months imprisonment or more.
The omitted paragraph (f) required the passenger card to ask questions for statistical data purposes. Much of that data is now captured electronically and the questions are no longer obligatory.
Regulation 12 - Schedule 1 (Classes of visas)
Subregulation 12.1 amends the heading of Schedule 1 to refer to regulation 2.07 to correct a minor technical error.
Subregulation 12.2 introduces a new visa application charge for applicants who apply outside Australia for a Short Stay (Visitor) (Class TR) visa. The new charge for a Short Stay (Visitor) (Class TR) visa is $50.
Subregulation 12.3 amends subitem 1301(1) of Schedule 1. By inserting form number 1001, this subregulation provides that an application made in Australia for a Confirmatory (Temporary) (Class TD) visa is also an application for a Bridging A (Class WA) visa.
Regulations 13 and 16 - Schedule 2
Part 104 (Preferential family)
Part 806 (Family)
These regulations alter the age requirements for applicants for a Subclass 104 (Preferential Family) or a Subclass 806 (Family) visa so that the visa can be granted even though the applicant has turned 18 years of age at the time of the decision. This amendment will only affect applicants for these Subclasses on the basis of being an orphan relative.
Regulation 14 - Schedule 2. Part 106 (Regional Linked)
Regulation 14 inserts new paragraph (c) into clause 106.211. The purpose of new paragraph 106.211(c) is to provide that the applicant may be a grandchild or first cousin of the person who is sponsoring them for a Subclass 106 (Regional Linked) visa.
Regulation 15 - Schedule 2, Part 420 (Entertainment)
Subregulation 15.1 omits paragraph 420.222(3)(c) and substitutes new paragraph (c). The new subparagraph (c)(i) inserts the provisions of the omitted paragraph and subparagraph (c)(ii) is a new provision. New subparagraph 420.222(3)(c)(ii) provides that the Arts Minister, or a person authorised by the Arts Minister, must provide a certificate that the production is fully funded offshore.
Subregulation 15.2 makes a technical amendment to subclause 420.223(1).
Subregulation 15.3 inserts new subclause 420.223(4). This regulation streamlines entry requirements for entertainers seeking to enter Australia to take part in film or television,' productions which are fully funded offshore. There will no, longer be a mandatory requirement for union consultation to have taken place before a visa may be granted.
Regulation 17 - Schedule 6 (General points test - qualifications and points)
Regulation 17 inserts a note after Item 6316 in Part 3 of Schedule 6 to the Migration Regulations as a consequence of new paragraph 2.26(3)(d) (see regulation 7 above).
Regulation 18 - Schedule 8A (Amount of partial refund)
Under subregulation 2.121(1), the Minister must make a partial refund of the second instalment of the visa application charge before the applicant commences a course of English language tuition provided under the Immigration (Education) Act 1971, for example where the applicant dies before commencing such a course.
Subregulation 18.1 omits item 8902 and substitutes new item 8902 to preserve the amount that the Minister is required to refund for applications which were lodged between 1 July 1997 and 30 June 1998 (inclusive).
Subregulation 18.2 inserts new item 8903. New item 8903 sets out the amount of the refund for applications lodged on or after 1 July 1998, so the amount of the refund of the second instalment of the visa application charge is the same amount as that which was increased in line with the Governments decision to index charges and fees on an annual basis.
Regulation 19 - Schedule 11 (Memorandum of Understanding)
Regulation 19 makes a minor technical amendment to the heading of the Memorandum of Understanding in Schedule 11, as a consequence of inserting new regulation 2.12BA into the Migration Regulations.
Regulation 20 - Schedule 12 (Exchange of Letters)
Regulation 20 omits Schedule 12 and substitutes new Schedule 12 into the Migration Regulations as a consequence of inserting new regulation 2.12BA into the Migration Regulations. The Schedule contains the text of the letters between representatives of Australia and the PRC dated 9 April 1998 and 10 April 1998 respectively.
Regulation 21 - Further amendments - fees and charges
This regulation sets out a table that provides for specified fees and charges to be amended as a result of the Government's decision to index fees and charges on an annual basis.
This regulation also increases certain fees and charges not covered by that decision to index fees and charges on an annual basis as follows.
The fees for assessment of a person's work qualifications and experience by the Department of Workplace Relations and Small Business have been increased. The fee for a standard skills assessment at subparagraph 5.40(1)(b)(i) is increased from $355 to $390. The fee for an optional priority skills assessment at subparagraph 5.40(1)(b)(ii) is increased from $540 to $595. The fee for an application for internal review of an assessment for either a skills assessment or an optional priority skills assessment (subregulation 5.40(2)) is increased from $355 to $390.
The visa application charge for a Long Stay (Visitor) (Class TN) and certain Business (Short Stay), Subclass 456 visas is increased to $50.
PART 3 - AMENDMENTS COMMENCING ON 1 AUGUST 1998
Regulation 22 - Schedule 1 (Classes of visas)
Subregulations 22.1 and 22.2 omit items 1203 (Citizens of Former Yugoslavia (Temporary) (Class TQ) and 1221 (Sri Lankan (Temporary) (Class TT)) from Schedule 1 to the Migration Regulations, respectively.
Regulations 23 and 24 - Schedule 2
Part 435 (Sri Lankan)
Part 443 (Citizens of Former Yugoslavia)
Regulations 23 and 24 omit Part 435 (Sri Lankan) and Part 443 (Citizens of former Yugoslavia) of Schedule 2 to the Migration Regulations, respectively.
Regulation 25 - Schedule 2. Part 805 (Skilled)
This regulation makes minor technical amendments to subparagraphs 805.212(2A)(a)(ii) and (viii), subparagraph 805.212(3)(a)(ii) and paragraph 805.212(3)(b) of Part 805 of . Schedule 2 as a consequence of omitting Part 435 (Sri Lankan) and Part 443 (Citizens of former Yugoslavia) from Schedule 2 to the Migration Regulations.