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MIGRATION REFORM (TRANSITIONAL PROVISIONS) REGULATIONS (AMENDMENT) 1995 NO. 266
EXPLANATORY STATEMENTSTATUTORY RULES 1995 No. 266
Issued by the Authority of the Minister for Immigration and Ethnic Affairs
Migration Act 1958
Migration Reform Act 1992
Migration Reform (Transitional Provisions) 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.
Section 42 of the Migration Reform Act 1992 (the Reform Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Reform Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Reform Act.
The purpose of the Regulations is to amend the Migration Reform (Transitional Provisions) Regulations (the Transitional Regulations) to rectify discrepancies in the resident status of certain persons of Papua New Guinea origin who mistakenly believe that they are or mistakenly believed that they were Australian citizens. These amendments will provide for the grant of a permanent visa, the Special Circumstance visa, to certain persons on 1 September 1994. The significance of 1 September 1994 is that it was the commencement date of the provisions of the Migration Reform Act 1992 which made substantial amendments to the Migration Act 1958. A Special Circumstance visa is a permanent visa which enables the holder to travel to and enter Australia during the period it is in effect. In particular the regulations will:
• provide for the grant of a Special Circumstance visa in effect until 31 October 1999 to a person who is eligible for the grant and is in Australia on 1 November 1995; and
• provide for the grant of a Special Circumstance visa to a person who is eligible for the grant and is outside Australia on 1 November 1995:
- if the person has been issued with an Australian passport, or has parental passport links as prescribed in these Regulations in which that person has been included in the passport of another person, and that passport is valid at the time it is presented to an Immigration officer, then the Special Circumstance visa is in effect for 4 years from the date of presentation of that valid passport; or
- in any other case the person has until 1 November 1996 to present to an officer of Immigration evidence as prescribed in these Regulations, then the Special Circumstance visa will be in effect until 31 October 1999.
These regulations commence on 1 November 1995.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides that these Regulations commence on 1 November 1995.
Regulation 2 - Amendment
This regulation provides that these Regulations amend the Migration Reform (Transitional
Provisions) Regulations.
Regulation 3 - New Regulation 19A
This regulation inserts new Regulation 19A - Special Circumstance Visa. Subregulation 19A(1) provides that there is a class of permanent visas called Special Circumstance visas. Subregulation 19A(2) provides that a non-citizen will be taken to have been granted a Special Circumstance visa on 1 September 1994 provided they meet the requirements set out in subregulations 19A(3) or subregulation 19A(4).
Subregulation 19A(3) provides that a non-citizen will meet the requirements of the subregulation if:
• the non-citizen was born in Papua New Guinea before 16 September 1975 ('Independence Day'); and
• the non-citizen became an Australian citizen before Independence Day in accordance with section 10 or paragraph 25(1)(a) of the Australian Citizenship Act 1948; and
• the non-citizen ceased to be an Australian citizen by operation of the Papua New Guinea Independence (Australian Citizenship) Regulations on Independence Day; and
• the non-citizen is not a person who having ceased to be an Australian citizen by operation of the above Regulations is taken to have re-acquired Australian citizenship on Independence Day by operation of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations and subsequently to have ceased to be an Australian citizen by operation of regulation 3 of those Regulations; and
• the non-citizen has parental links with Australia as defined in subregulation 19A(5); and
• the non-citizen is a person to whom either an Australian passport was issued on or after Independence Day, or is a person with parental passport links with Australia as defined in subregulation 19A(6), or is a person whose name was registered as an Australian citizen by descent in accordance with the relevant provision under the Australian Citizenship Act 1948, or is a person who can produce written evidence of a record of notification from a Commonwealth Department to the effect that the person was an Australian citizen at the time that the notification was given to that person; and
• the non-citizen was not a citizen of a country other than Papua New Guinea on 1 September 1994; and
• the non-citizen has been in Australia for periods that together amount to at least two years during the period from 1 September 1989 to 1 September 1994; and
• either:
- the non-citizen is in Australia on 1 November 1995 and is not the holder of a permanent visa or transitional (permanent) visa; or
- the non-citizen is not in Australia on 1 November 1995 and, after 1 November 1995, produces satisfactory evidence of a purported entitlement to enter Australia as provided in subregulation 19A(7).
Subregulation 19A(4) provides that a non-citizen will meet the requirements of the subregulation if:
• the non-citizen is a natural, or adoptive child, or grandchild, of a person who meets the requirements of subregulation 19A(3); and
• the non-citizen was not a citizen of a country other than Papua New Guinea on 1 September 1994; and
• either:
- the non-citizen is in Australia on 1 November 1995 and is not the holder of a permanent visa or a transitional (permanent) visa; or
- the non-citizen is not in Australia on 1 November 1995 and, after 1 November 1995, produces satisfactory evidence of a purported entitlement to enter Australia as provided in subregulation 19A(7).
Subregulation 19A(5) provides that a non-citizen has parental links with Australia for the purposes of paragraph 19A(3)(e) if a natural or adoptive parent of the non-citizen either:
• was an Australian citizen immediately before Independence Day and either:
- did not have 2 grandparents who were born in Papua New Guinea or the adjacent area; or
- had a right of permanent residence in Australia on Independence Day; or
• died before Independence Day but was an Australian citizen on the date of his or her death and either:
- did not have 2 grandparents who were born in Papua New Guinea or the adjacent area; or
- had a right of permanent residence in Australia on the date of his or her death.
That is, if the circumstances of the natural or adoptive parent of the child are as described in the above 2 dash points, it is intended to extend the grant of a Special Circumstance visa to that child provided the other prescribed matters are satisfied. The reason for the provision is to establish continuing links of the family to Australia in that one parent remained an Australian citizen (or would have remained an Australian citizen if alive) on Independence Day. If the parent or adoptive parent was alive on Independence Day they would not have automatically gained Papua New Guinea citizenship on Independence Day (by virtue of the Papua New Guinea Constitution) and would have remained an Australian citizen (not being within the terms of the Papua New Guinea Independence (Australian Citizenship) Regulations).
Subregulation 19A(6) provides that a non-citizen has parental passport links with Australia for the purposes of subparagraph 19A(3)(f)(ii) if:
• the person is a natural or adoptive child of a person to whom an Australian passport was issued on or after Independence Day; and
• particulars of the child were included in an endorsement of that passport of the natural or adoptive parent; and the effect that the child had not
• that passport did not include an endorsement to acquired Australian citizenship.
Subregulation 19A(7) provides that for the purposes of certain subparagraphs, a non-citizen produces satisfactory evidence of a purported entitlement to enter Australia if:
• the non-citizen presents an unexpired passport to an officer. In the case of a non-citizen who claims to meet the requirements of subregulation 19A(3) that passport must have been issued to the non-citizen. In the case of a non-citizen who claims to meet the requirements in subregulation 19A(4) that passport must have been issued to, or endorsed to include the non-citizen; or
• before 1 November 1996, the non-citizen presents to an officer certain other evidence. In the case of a non-citizen who claims to meet the requirements of subregulation 19A(3) the non-citizen must present evidence that the non-citizen is a person:
(a) to whom an Australian passport was issued after Independence Day. (By virtue of the existence of paragraph 19A(7)(a) this will necessarily now be an expired passport); or
(b) with parental passport links with Australia within the meaning of subregulation 19A(6). (By virtue of the existence of 19A(7)(a) this will necessarily now be an endorsement in a passport which has expired); or
(c) whose name was registered as an Australian citizen by descent in accordance with the relevant provision under the Australian Citizenship Act 1948; or
(d) to whom written evidence of a record of notification from a Commonwealth Department to the effect that the person was an Australian citizen at the time that the notification was given.
In the case of a non-citizen who claims to meet the requirements of subregulation 19A(4) the non-citizen must present evidence that either the non-citizen or a natural, or adoptive parent or grandparent of the non-citizen is a person:
(a) to whom an Australian passport was issued after Independence Day. (By virtue of the existence of paragraph 19A(7)(a) this will necessarily now be an expired passport); or
(b) with parental passport links with Australia within the meaning of subregulation 19A(6). (By virtue of the existence of 19A(7)(a) this will necessarily now be an endorsement in a passport which has expired); or
(c) whose name was registered as an Australian citizen by descent in accordance with the relevant provision under the Australian Citizenship Act 1948; or
(d) to whom written evidence of a record of notification from a Commonwealth Department to the effect that the person was an Australian citizen at the time that the notification was given.
Subregulation 19A(8) provides that a Special Circumstance visa is a permanent visa which permits the holder to travel to and enter Australia:
(a) in the case of a non-citizen referred to in paragraph (7)(a) - for a period of 4 years from the day on which the person presents the relevant passport; and
(b) in any other case - until 31 October 1999.
Subregulation 19A(9) declares that pursuant to subsection 40(3) of the Reform Act, subsection 82(2) of the amended Act does not apply to a Special Circumstance visa where a temporary substantive visa was granted between 1 September 1994 and 1 November 1995.
This provision is designed to avoid the situation where a person who is taken to have been granted a Special Circumstance visa has obtained a temporary visa to travel to, enter and remain in Australia after 1 September 1994 but before the commencement of these Regulations. Without this provision subsection 82(2) of the Act would have operated to have cancelled the Special Circumstance visa (which is a permanent visa) by virtue of the mere coming into effect of a temporary visa. In this case the person will hold two visas until one ceases to be in effect.
If a Special Circumstance visa holder obtained a substantive permanent visa this will cause the Special Circumstance visa to cease to be in effect. That is subsection 82(2) of the Act will operate. The intention here is that that person's status should be governed by the permanent visa they have been granted.
Subregulation 19A(10) provides a definition of "Australian passport" for the purposes of these Regulations.