EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 134

 

 

Issued by the Minister for Immigration and

Multicultural and Indigenous Affairs

 

 

Migration Act 1958

 

Migration Amendment Regulations 2005 (No. 4)

 

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, 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.

 

Section 13 of the Immigration (Education) Act 1971  provides that the Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this 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, as amended by the Migration Amendment Regulations 2005 (No. 3) to: increase certain fees and charges; amend provisions relating to visa applicants affected by domestic violence; amend the Close Ties visa provisions; amend powers relating to personal identifiers; remove the sunset clause relating to post decision fees for Refugee Review Tribunal decisions; facilitate the collection of passport information from applicants; prior to visa grant and enable discretionary evidencing of visa grant.

 

In particular, the Regulations amend the Principal Regulations to:

·        provide for the annual indexation of fees and charges and make other fee and charge changes.  The indexation would result in an increase of between 2.3% and 5% for most fees and charges (Schedules 1-2);

·        allow the Minister to refer claims of domestic violence to an independent expert for assessment and introduce other measures to enhance the integrity of provisions for the grant of a visa on the grounds of domestic violence (Schedule 3);

·        prevent the lodgement of more than two partner sponsorships by a sponsor in cases where a visa has already been granted as a result of domestic violence committed by the sponsor (Schedule 3);

·        remove provisions relating to persons who last entered Australia before 1975 and formed close ties, and persons who spent their formative years in Australia from the Close Ties (Subclass 832) visa (Schedule 4);

·        authorise the collection and disclosure of personal identifiers to enable trials to test the impact of biometric technologies on the Department’s business processes and client services (Schedule 5);

·        remove the sunset clause for post decision fees imposed on applicants who have been unsuccessful at the Refugee Review Tribunal (Schedule 6); and

·        facilitate the collection of passport information from visa applicants, other than refugee and humanitarian visa applicants, prior to visa grant, enable discretionary evidencing of visa grant for most visa subclasses and provide for:

-        the evidencing of Protection visa grants on an approved form; and

-        the electronic evidencing of visa grants in immigration clearance so that possession of a visa that is in effect may be evidenced by the production of a passport (Schedules 7-13).

 

The proposed Regulations would also amend the Immigration (Education) Regulations 1992 to increase the fees payable for a prescribed English course.

 

Details of the Regulations are set out in Attachment B.

 

The Regulations reflect regular changes that are made to the Principal Regulations. These are changes that give effect to the ongoing update of immigration policy and regulations.

 

The Regulations commence on 1 July 2005. The commencement date is a consequence of various systems requirements necessary to allow the implementation of the Regulations.

 

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

 

The following external agencies and other bodies were consulted in relation to the Regulations:

·        Australian Government’s Office of the Status of Women and Partnerships Against Domestic Violence Task Force, to obtain their support in principle for a mechanism for referral of  non-judicially tested claims of domestic violence for independent expert assessment (Schedule 3);

·        Attorney-General’s Department on collection, storage, use or disclosure of personal information (Schedule 5);

·        Department of Finance and Administration on the appropriation of funds and the Refugee Review Tribunal (RRT) which had no comment on the proposal to repeal the sunset clause for RRT post decision fees (Schedule 6);

·        Australian Customs Service concerning their processing system for passports and visas (Schedule 7-13).

 

No other consultations were conducted in relation to the other Schedules to the Regulations, as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

0506987A-050603Z

ATTACHMENT A

 

Section 13 of the Immigration (Education) Act 1971 provides that the Governor-General may make regulations, not inconsistent with that Act, prescribing all matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

Section 4A of that Act provides that the regulations may provide for the charging and recovery of fees, not exceeding the applicable fee limit per year per student, in respect of English courses provided in accordance with section 4 of that Act.

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, 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.  Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.

 

In addition to subsection 504(1), the following provisions of the Act may apply:

·        subsections 29(2) and 29(3) of the Act, which provide that the regulations may prescribe a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;

·        section 31 of the Act, which deals with classes of visas.  In particular:

-         subsection 31(1) of the Act, which provides that the regulations are to prescribe classes of visas;

-         subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

-         subsection 31(4) of the Act, which 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, which provides that the regulations may specify that a visa is a visa of a particular class;

·        subsection 40(1) of the Act, which 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, which provides that the regulations may provide that visas or visas of a specified class are subject to specified conditions;

·        subsection 41(2) of the Act, which 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 that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind), while he or she remains in Australia; or

-     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 restriction on doing any work, work other than specified work or work of a specified kind;

·        subsection 41(3) of the Act, which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;

·        subsection 45B(1) of the Act, which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;

·        subsection 45B(2) of the Act, which provides that the regulations may prescribe that the amount in relation to an application be nil;

·        paragraph 45C(2)(b) of the Act, which provides that the regulations may also make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge;

·        section 46 of the Act, which deals with when an application for a visa is a valid application. In particular:

-     subsection 46(3), which 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;

-     subsection 46(4) of the Act, which 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; how and where an application for a visa of a specified class must be made; and where an applicant must be when an application for a visa of a specified class is made;

·        section 70 of the Act, which 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;

·        subsection 71(1) of the Act, which provides for the regulations to prescribe the way in which evidence of a visa is to be given;

·        subsection 71(2) of the Act, which provides for the regulations to provide that the way in which evidence of a visa or a visa of a class is to be given is to depend on the circumstances in which it is given;

·        subsection 166(1AA) of the Act, which provides that an officer must not require, for the purposes of paragraph (1)(aa), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

-        a photograph or other image of the person's face and shoulders;

-        the person's signature;

-        any other personal identifier contained in the person's passport or other travel document;

-        any other personal identifier of a type prescribed for the purposes of this paragraph;

·        paragraph 166(1)(b) of the Act, which provides that the regulations may require a non-citizen in immigration clearance to give specified information to the clearance officer;

·        subsection 166(2) of the Act, which provides for the regulations to prescribe the way in which a non-citizen is to show a clearance officer evidence of the person’s identity and of a visa that is in effect, for the purposes of immigration clearance; 

·        subsection 261AA(1A) of the Act, which provides that an authorised officer must not require, for the purposes of subsection (1), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

-        fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

-        a measurement of the person's height and weight;

-        a photograph or other image of the person's face and shoulders;

-        the person's signature;

-        any other personal identifier of a type prescribed for the purposes of this paragraph.

·        subsection 336F(1) of the Act, which provides that the Secretary may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:

-        one or more specified foreign countries;

-        one or more specified bodies each of which is:

o          a police force or police service of a foreign country; or

o          a law enforcement body of a foreign country (including a war crimes tribunal); or

o          a border control body of a foreign country;

-        one or more specified international organisations, or specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;

-        one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;

-        one or more prescribed international organisations;

·        section 495 of the Act, which provides that the Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used;

·        paragraph 504(1)(a) which provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations;

·        subparagraph 504(1)(c)(i), which provides that the Governor-General may make regulations making provision for or in relation to the furnishing or obtaining of information with respect to persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia;

·        paragraph 504(1)(d) of the Act provides that the regulations may make provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected under paragraph 504(1)(c);

·        paragraph 504(1)(e) of the Act, which provides that the regulations may be made 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; and

·        section 505 of the Act, which provides that, to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

-        is to get a specified person or organisation, or a person or organisation in a specified class, to give an opinion on, or make an assessment of, or make a finding or decision about a specified matter; and

-        is to have regard to that opinion, assessment, finding or decision, or take that opinion, assessment, finding or decision to be correct;

for the purposes of deciding whether the applicant satisfies the criterion.

 

 

ATTACHMENT B

 

Details of the proposed Migration Amendment Regulations 2005 (No. 4)

 

Regulation 1 – Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 4).

 

Regulation 2 – Commencement

 

This regulation provides that these Regulations commence on 1 July 2005.

 

Regulation 3 – Amendment of Immigration (Education) Regulations 1992

 

This regulation provides that Schedule 1 amends the Immigration (Education) Regulations 1992.

 

Regulation 4 – Amendment of Migration Regulations 1994

 

Subregulation 4(1) provides that Schedules 3 to 6 amend the Migration Regulations 1994.

 

Subregulation 4(2) provides that Schedules 2 and 4 and  Schedules 7 to 13 amend Migration Regulations 1994 as amended by the Migration Amendment Regulations 2005 (No. 3).

 

Regulation 5 – Transitional

 

Subregulation 5(1) provides that the amendments made by Schedule 1 apply in relation to an enrolment in a prescribed English course on or after 1 July 2005.

 

Subregulation 5(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2005.

 

Subregulation 5(3) provides that the amendments made by Schedule 3 apply in relation to an application for a visa:

·        made on or after 1 July 2005; or

·        made but not determined (within the meaning of subsection 5(9) of the Migration Act 1958) (the Act), before 1 July 2005.

 

Subregulation 5(4) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made on or after 1 July 2005.

 

Subregulation 5(5) provides that the amendments made by Schedule 5 apply in relation to:

·        a request for a personal identifier made in accordance with the Act on or after

1 July 2005; and

·        the disclosure of identifying information in accordance with the Act on or after

1 July 2005.

 

Subregulation 5(6) provides that the amendments made by Schedules 7 to 13 apply in relation to:

·        an application for a visa made on or after 1 July 2005;

·        a non-citizen in immigration clearance on or after 1 July 2005;

·        re-evidencing of a visa on or after 1 July 2005.

 

Schedule 1 – Amendments relating to fees under the Immigration (Education) Regulations 1992

Item [1] – Paragraph 4(1)(a)

This item amends paragraph 4(1)(a) of the Immigration (Education) Regulations 1992 to provide for the indexation of the prescribed fee for a formal course which is a prescribed English Course for subsection 4A(1) of the Immigration (Education) Act 1971.  The indexation will result in an increase to the charge of approximately 2.3% in line with general price movements.

The amount of the increase in this Item does not exceed the applicable charge limit set out in the Immigration (Education) Act 1971.

Item [2] – Paragraph 4(1)(b)

This item amends paragraph 4(1)(b) of the Immigration (Education) Regulations 1992 to provide for the indexation of the prescribed fee for a course, other than a formal course, which is a prescribed English Course for subsection 4A(1) of the Immigration (Education) Act 1971.  The indexation will result in an increase to the charge of approximately 2.3% in line with general price movements.

The amount of the increase in this Item does not exceed the applicable charge limit set out in the Immigration (Education) Act 1971.

Schedule 2 – Amendments relating to fees under the Migration Regulations 1994

Item [1] – Amendments

This Item amends Parts 1 and 5 and Schedule 1 to the Migration Regulations 1994 (the Principal Regulations) to provide for the annual indexation of specified fees and charges.  The indexation will factor in an increase to fees and charges of approximately 2.3% in line with general price movements.  However, the first instalment of the visa application charge will be increased by approximately 5% with the exception of tourist, student and visitor visas. 

Fees and charges associated with the Contributory Parent (Migrant)(Class CA), the Contributory Aged Parent (Residence)(Class DG), the Contributory Parent (Temporary)(Class UT) and the Contributory Aged Parent (Temporary)(Class UU) visas are indexed in accordance with the Contributory Parent Visa Composite Index.  The Contributory Parent Visa Composite Index is calculated annually by the Australian Government Actuary in accordance with the formula set out in the Migration (Visa Application) Charge Act 1997.

All increases are rounded to a multiple of $5.00 according to the following methodology:

·      if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;

·      in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The amount of the increase in these items does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997. 

Schedule 3 – Amendments relating to domestic violence

Item [1] – Paragraph 1.20J(1)(c)

This item substitutes a new paragraph 1.20J(1)(c) in regulation 1.20J (Limitation on approval of sponsorships – spouse, prospective spouse and interdependency visas) in Part 1 of the Principal Regulations.

New subparagraph 1.20J(1)(c)(i) repeats the provision of the previous paragraph 1.20J(1)(c), which restricts to two the number of times a person may sponsor an applicant for a partner visa by preventing approval of a sponsorship of a partner if visas have previously been granted to more than one person on the basis of a relationship with, and sponsorship or nomination by the same sponsor. (The effect of existing paragraph 1.20J(1)(d) is that the two sponsorships must be at least 5 years apart.)

New subparagraph 1.20J(c)(ii) imposes additional restrictions on sponsors by preventing the approval of further sponsorships where more than one person has previously been granted a visa on the grounds of having ceased a partner relationship with the sponsor after the person (or another person such as a member of the sponsor’s family unit) suffered domestic violence committed by the sponsor.

This amendment corrects an unintended outcome in that while limits were previously imposed on the number and frequency of partner migration sponsorships, visas granted following cessation of the relationship as a result of domestic violence committed by the sponsor were not counted against the sponsor.  As a result, ‘serial abusers’ previously encountered no obstacle to continued sponsorships in multiple applications.

Item [2] – Subregulation 1.21(1), after definition of competent person

This item inserts three new definitions in subregulation 1.21(1) of Part 1 of the Principal Regulations, to define terms used in Division 1.5 (Special provisions relating to domestic violence) of Part 1 of the Principal Regulations, as amended by these Regulations.  The new terms are:

independent expert:  This term is defined to mean a person who is ‘suitably qualified to make independent assessments of non-judicially determined claims of domestic violence’ and is employed by or contracted to an organisation that is specified in a Gazette Notice for the purpose of making such assessments.  The term is used in new paragraph 1.23(1)(g), new paragraph 1.23(1B)(b) and new subregulation 1.23(1C), inserted in Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations, and new regulation 1.27, inserted in Part 1 of the Principal Regulations by item [8] of Schedule 3 to these Regulations.  For further details, please see the notes on the relevant items.

non-judicially determined claim of domestic violence:  This term is defined to have the meaning given by subregulation 1.23(1A).  This is a reference to new subregulation 1.23(1A), inserted in Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations.  For further details, please see the notes on that item.

relevant domestic violence:  This term is defined to have the meaning given by paragraph 1.23(2)(b). This is a reference to paragraph 1.23(2)(b) in Part 1 of the Principal Regulations. Previously relevant domestic violence was referred to only in existing subregulation 1.23(2) and regulations 1.25 and 1.26.  Following amendments made by these Regulations it is now appropriate to define the term in respect of the whole of Division 1.5 as it is also used in new paragraphs 1.23(1)(f) and (g), substituted in Part 1 of the Principal Regulations by item [3] of Schedule 3 to these Regulations, and new subregulations 1.23(1A) and 1.23(1B), inserted in the Principal Regulations by item [4] of Schedule 3 to these Regulations.  For further details, please see the notes on the relevant items.

Item [3] – Paragraphs 1.23(1)(f) and (g)

This item substitutes new paragraphs 1.23(1)(f) and (g) in Part 1 of the Principal Regulations.  This amendment makes certain changes to the circumstances under which a person (‘the alleged victim’) is taken to have suffered domestic violence committed by another person (‘the alleged perpetrator’) for the purposes of satisfying a prescribed criterion for the grant of a visa.

Under the previous paragraphs 1.23(1)(f) and (g), a person could establish that domestic violence had occurred by presenting evidence of “a joint undertaking to a court [by the alleged victim and the alleged perpetrator] in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim”, or, if the alleged victim was within a specified class of persons, by presenting other specified evidence that domestic violence had occurred (statutory declarations by specified persons, or a copy of a police record of assault), respectively. 

These provisions left no scope for the evidence presented to be assessed by the Minister (or delegated decision-maker), although the relevant evidence related to untested claims of domestic violence and was not supported by a court order or finding.  (This may be compared with the “judicial” evidence of domestic violence referred to in paragraphs 1.23(1)(c), (d) and (e) of Part 1 of the Principal Regulations.)   Statutory declarations about the occurrence of  relevant domestic violence need contain very little information in order to meet the requirements set out in regulations 1.25 and 1.26 of Part 1 of the Principal Regulations, and previously were not open to assessment by the Minister (or delegated decision-maker), even where they were patently incorrect in fact or inconsistent with other evidence.

New paragraphs 1.23(1)(f) and (g) change these arrangements in the following ways.

New paragraph 1.23(1)(f) provides that domestic violence is taken to have occurred if the Minister is satisfied, in accordance with paragraph (1B)(a), that the alleged victim has suffered relevant domestic violence.  This refers to the requirement of new paragraph 1.23(1B)(a), inserted in Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations, that the Minister must, if an application includes a non-judicially determined claim of domestic violence, assess whether he or she is satisfied that the alleged victim has suffered relevant domestic violence, and if satisfied must consider the application on that basis.

New paragraph 1.23(1)(g) provides that domestic violence is taken to have occurred if the Minister is required by subregulation (1C) to take as correct an opinion of an independent expert  that the victim has suffered relevant domestic violence. This refers to the requirements of new paragraph 1.23(1B)(b) and new subregulation 1.23(1C), inserted in

Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations, that the Minister must, if an application includes a non-judicially determined claim of domestic violence and the Minister is not satisfied that the alleged victim has suffered relevant domestic violence has occurred, seek the opinion of an independent expert as to whether the alleged victim has suffered relevant domestic violence, and to take that opinion as correct.

 

Item [4] – After subregulation 1.23(1)

This item inserts three new subregulations 1.23(1A), (1B) and (1C) in Part 1 of the Principal Regulations.  The purpose of these new subregulations is to set out new provisions relating to the way in which claims of domestic violence which have not been tested in a court (non-judicially determined claims of domestic violence) are to be assessed by the Minister and, in certain circumstances, an independent expert.

New subregulation 1.23(1A) describes the circumstances under which an application for a visa is taken to include a non-judicially determined claim of domestic violence. These circumstances are where an applicant seeks to satisfy a prescribed criterion for the grant of a visa on the grounds that the applicant or another person has suffered domestic violence committed by a specified perpetrator, and either:

-        the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings concerning an allegation that the alleged perpetrator has committed an act of violence against the alleged victim; or

-        if the alleged victim is a person referred to in existing subregulation 1.23(2) in Part 1 of the Principal Regulations, the alleged victim or a person acting on the alleged victim’s behalf has presented evidence in accordance with existing regulation 1.24 of Part 1of the Principal Regulations that the alleged victim has suffered relevant domestic violence committed by the alleged perpetrator.  The evidence referred to in subregulation 1.24 includes Statutory Declarations by specified persons, and copies of police records of an assault on the alleged victim by the alleged perpetrator.

New subregulation 1.23(1B) provides that, if an application for a visa includes a non-judicially determined claim of domestic violence (as described in new subregulation 1.23(1A)), the Minister must consider whether the alleged victim has suffered relevant domestic violence.

New paragraph 1.23(1B)(a) requires the Minister, if satisfied that the alleged victim has suffered relevant domestic violence, to consider the application on that basis.

New paragraph 1.23(1B)(b) provides that if the Minister is not satisfied that the alleged victim has suffered relevant domestic violence, the Minister must seek the opinion of an independent expert as to whether relevant domestic violence has occurred.

New subregulation 1.23(1C) provides that when the Minister obtains the opinion of an independent expert as to whether relevant domestic violence has occurred after seeking the opinion in accordance with new paragraph 1.23(1B)(b), the Minister must take the opinion to be correct.  The effect of this provision is that in deciding whether a visa applicant satisfies a prescribed criterion that the applicant or another person has suffered domestic violence committed by another person specified in the criterion, the Minister is bound by the opinion of the independent expert as to whether or not relevant domestic violence has occurred.

Item [5] – Subregulation 1.23(2)

This item omits a reference to ‘paragraph (1)(g)’ in subregulation 1.23(2) of Part 1 of the Principal Regulations, and replaces it with a reference to new subparagraph (1A)(b)(ii).  The amendment is consequential upon the amendment made to paragraph 1.23(1)(g) of Part 1 of the Principal Regulations by item [3] of Schedule 3 to these Regulations, and the insertion of new subparagraph 1.23(1A)(b)(ii) in Part 1 of the Principal Regulations by item [3] of Schedule 3 to these Regulations.

Item [6] – Subregulation 1.24(1)

This item omits a reference to ‘paragraph 1.23(1)(g)’ in subregulation 1.24(1) of Part 1 of the Principal Regulations, and replaces it with a reference to new subparagraph 1.23(1A)(b)(ii).  The amendment is consequential upon the amendment made to paragraph 1.23(1)(g) of Part 1 of the Principal Regulations by item [3] of Schedule 3 to these Regulations, and the insertion of new subparagraph 1.23(1A)(b)(ii) in Part 1 of the Principal Regulations by item [3] of Schedule 3 to these Regulations.

Item [7] – Subparagraph 1.24(1)(a)(ii)

This item amends subparagraph 1.24(1)(a)(ii) of Part 1 of the Principal Regulations by inserting the words “(other than a statement by the alleged victim)” after the word “Territory”.  The effect of this amendment is to exclude a statement (or statements) by the alleged victim (known as a “Statement of a Witness”) from the police records of an assault that may be provided to support a non-judicially determined claim of domestic violence in accordance with new subparagraph 1.23(1A)(b)(ii), inserted in Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations.

The reason for this amendment is that the content of the statements referred to may be identical with that of a statutory declaration made by the alleged victim in accordance with existing paragraph 1.24(1)(a) of Part 1 of the Principal Regulations, and therefore add little or nothing to the other evidence submitted under new subparagraph 1.23(1A)(b)(ii). Under the previous regulations, this documentation could be used to establish a claim of domestic violence in conjunction with only one statutory declaration by a competent person (instead of two statutory declarations by competent persons which would otherwise be required) and a statutory declaration by the applicant made in accordance with existing regulation 1.25.

Under the amendments made by these Regulations, a non-judicially determined claim of domestic violence can no longer be established on this basis. Other police records of assault, which in many cases may strongly substantiate a claim of domestic violence, will continue to be acceptable as establishing a claim of non-judicially determined domestic violence, in conjunction with Statutory Declarations by the alleged victim and one other competent person.        

Item [8] – Regulation 1.27

This item omits regulation 1.27 of Part 1 of the Principal Regulations and substitutes a new regulation 1.27.

New regulation 1.27 includes the provisions of the previous regulation 1.27, which prevented a statutory declaration made to establish a claim of alleged domestic violence made for the purpose of satisfying a criterion for the grant of visa from being admitted in evidence before a court or tribunal except in a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declaration Act 1959.

In addition, new subregulation 1.27 includes an opinion given by an independent expert under new paragraph 1.23(1B)(b) (inserted in the Part 1 of the Principal Regulations by item [4] of Schedule 3 to these Regulations) as a document that is not admissible in evidence. 

Further, new subregulation 1.27 allows the relevant documents to be admitted in evidence in proceedings relating to an application for judicial or merits review of a decision to refuse to grant a visa where the application included a non-judicially determined claim of domestic violence supported by the relevant statutory declaration or opinion.  This amendment rectifies an unintended effect that the statutory declaration or opinion may not have been admissible in proceedings for review of the decision to which it related.    

Schedule 4 – Amendments relating to Close Ties Visas

Item [1] – Paragraph 2.12(1)(a)

This item omits paragraph 2.12(1)(a) of Part 2 of the Principal Regulations.

Section 48 of the Act prescribes the visa subclasses available to applicants who have had a visa cancelled or a visa application refused.  Special Eligibility (Residence) (Class AO) is a prescribed visa class under section 48 of the Act.  Paragraph 2.12(2)(1)(a) provides that a person making an application for a Class AO visa must meet the formative years provisions in order to make a valid visa application.

This amendment omits 2.12(1)(a), removing the Special Eligibility (Residence) (Class AO) visa from the prescribed list of visa subclasses under section 48 of the Act

This amendment is consequential to amendments made by these regulations to remove provisions relating to people who had spent most of their formative years in Australia from the Subclass 832 (Close Ties) visa (see item [5] below).

Item [2] – subregulation 2.12(2)

This item omits subregulation 2.12(2) of Part 2 of the Principal Regulations. 

Subregulation 2.12(2) sets out that paragraph 2.12(2)(1)(a) provides that a person making an application for a Class AO visa must meet the formative years provisions in order to make a valid visa application.

This amendment is consequential to amendments made by these regulations to remove provisions relating to people who had spent most of their formative years in Australia from the Subclass 832 (Close Ties) visa (see item [5] below).

Item [3] – Schedule 1, paragraph 1115(2)(a)

This item substitutes paragraph 1115(2)(a) of Schedule 1 to the Principal Regulations.

Subregulation 1115(2) prescribes $1935 as the visa application charge payable at the time a visa application is made.  This charge has been indexed in line with the formula used to calculate the fee changes made in Item [1] of Schedule 2 to these Regulations.

This amendment omits subparagraphs 1115(2)(a)(i) and 1115 (2)(a)(ii). 

Subparagraph 1115(2)(a)(i) and (ii) provides a reduced visa application charge for certain applicants.  As there are no longer any applicants who can satisfy this criteria these provisions are no longer required. 

Item [4] - Schedule 1, paragraph 1115(3)(d)

This item amends paragraph 1115(3)(d) of Schedule 1 to the Principal Regulations. 

This amendment omits the reference to Family (Residence) (Class AO) and inserts a reference to Special Eligibility (Residence) (Class AO). 

Item [5] - Schedule 2, subdivision 832.21

This item substitutes subdivision 832.21 of Schedule 2 to the Principal Regulations.

This amendment omits provisions relating to persons who last entered Australia before 1975 and formed close ties.  In recent years there have been very few applicants seeking to satisfy this criteria for this subclass.  Most of these remaining non citizens can be catered for by other existing arrangements.

This amendment also omits provisions relating to pre 1975 applicants and those who ceased to hold a substantive visa before turning 18 but who spent the greater part of their formative years in Australia, while retaining provisions relating to persons who have spent 9 out of their first 18 years in Australia as permanent residents or former Australian permanent residents who have served in the Australian armed forces for at least 3 months.

Item [6] - Schedule 2, clause 832.221

This item substitutes Schedule 2, clause 832.221 of the Principal Regulations.

The amendment omits certain time of decision criteria for primary applicants applying for a Subclass 832 (Close Ties) visa.  The changes are consequential to the changes made at Item [5] of these amendments.

Schedule 5 – Amendments relating to identifying information

Item [1] – After regulation 3.03

This item inserts a new regulation 3.03A Evidence of identity and visa for persons entering Australia – personal identifiers, after regulation 3.03 in Part 3 of the Principal Regulations.

New regulation 3.03A provides that a fingerprint or handprint, including those taken using paper and ink or digital livescanning technologies and an iris scan, are personal identifiers prescribed for the purpose of paragraph 166(1AA)(d) of the Act.

The purpose of this amendment is to ensure that where a non-citizen enters Australia and prescribed circumstances exist, the non-citizen must, without unreasonable delay comply with any request to provide the clearance officer with one or more of any of the following personal identifiers:

·          a photograph or other image of the person’s face and shoulders;

·          the person’s signature;

·          any other personal identifier contained in the person’s passport or other travel document;

·          fingerprints or handprints of the person (including those taken using paper and ink or digitial livescanning technologies); or

·          an iris scan.

 

Item [2] – Regulation 3.30

 

This item creates a new subregulation 3.30(1) from existing regulation 3.30 in Part 3 of the Principal Regulations.

 

This is a technical amendment consequent to the insertion of a new subregulation 3.30(2) by these regulations (see Item [3] below).

 

Item [3] – Regulation 3.30

 

This item inserts a new subregulation 3.30(2) into regulation 3.30 in the Principal Regulations.

 

New subregulation 3.30(2) provides that an iris scan is prescribed as a personal identifier for the purpose of paragraph 261AA(1A)(e) of the Act.

 

The purpose of this amendment is to ensure that an authorised officer must not require a non-citizen who is in immigration detention to provide a personal identifier, for the purposes of subsection 261AA(1) of the Act, other than:

·          fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

·          a measurement of the person’s height and weight;

·          a photograph or other image of the person’s face and shoulders;

·          the person’s signature; or

·          an iris scan.

 

Item [4] – After regulation 5.34

 

This item inserts two new regulations - 5.34D Disclosure of information to prescribed bodies and 5.34E Disclosure of information to prescribed international organisations, after regulation 5.34 in the Principal Regulations.

 

New regulation 5.34D provides that for paragraph 336F(1)(d) of the Act a prescribed body of a  foreign country, or the Commonwealth, or a State or Territory, is a body or organisation  specified by the Minister by Gazette Notice for this regulation.

 

New regulation 5.34E provides that for paragraph 336F(1)(e) of the Act a prescribed international organisation is an organisation that is specified by the Minister by Gazette Notice for this regulation.

 

The purpose of this amendment is to ensure that the Minister can specify and change from time to time:

·          the bodies of a foreign country, or the Commonwealth, or a State or Territory; and

·          the international organisations;

to which identifying information can be disclosed in accordance with the Act.

 

Schedule 6 – Amendment relating to review by the Refugee Review Tribunal

 

Item [1] – Subregulation 4.31B

This amendment removes the sunset clause in subregulation 4.31B(5) in Part 4 of the Principal Regulations.

The effect of the amendment is that applications for review to the Refugee Review Tribunal after 1 July 2005 are subject to paragraph 4.31B(1)(b) which imposes a $1400 post Refugee Review Tribunal decision fee on unsuccessful review applicants.  Removing the 1 July 2005 sunset clause creates greater certainty for applicants and allows flexibility for the timing of future reviews of this provision.

Schedule 7 – Amendments relating to visa labels – general

 

Item [1] – Paragraph 2.16(2)(b), except the note

This item substitutes paragraph 2.16(2)(b) in Part 2 of the Principal Regulations with new paragraph 2.16(2)(b).

 

New subparagraphs 2.16(2)(b)(i) and 2.16(2)(b)(ii) continue to provide that where the visa applicant is not given evidence, then notification must be done either orally, or according to the notification provisions in section 494B in the Migration Act 1958.

 

New subparagraph 2.16(2)(b)(ii) provides for the discretionary evidencing of visa grant. Previously the wording referred to the mandatory evidencing of visa grant, which does not continue after 1 July 2005.

 

Item [2] – Subregulation 2.17(6)

 

This item substitutes subregulation 2.17(6) in Part 2 of the Principal Regulations with new subregulation 2.17(6).

 

New subregulation 2.17(6) extends the circumstances where a visa grant may be re-evidenced.

 

Re-evidencing of visa grant is currently mandatory for passport holders only. The purpose of this amendment is to provide for the discretionary re-evidencing of a visa grant where the passport, document, or previous evidence cannot be used for travel purposes.

 

This amendment is consequential to the Division 7 amendments in these regulations that provide that visas may be evidenced in a valid passport, valid Convention travel document or a form that has been approved by the Minister.

 

 

Item [3] – Paragraph 3.03(3)(f), except the note

 

This item substitutes paragraph 3.03(3)(f) in Part 2 of the Principal Regulations with new paragraph 3.03(3)(f).

 

New paragraph 3.03(3)(f) prescribes the evidence of identity and information that certain visa holders, who have made an Internet application, must give to the immigration clearance officer.

 

The purpose of this amendment is to clarify the provisions of paragraph 3.03(3)(f), which are limited to holders of Subclass 417 (Working Holiday) and Subclass 676 (Tourist) visas, who made their application for their visa on the Internet.

 

Item [4] – Paragraphs 3.03(3)(h), (i), (j) and (k)

 

This item omits paragraphs 3.03(3)(h), (i), (j) and (k) in Part 2 of the Principal Regulations.

 

This amendment is consequential to the amendment of paragraph 3.03(4)(a) by these regulations (item [5]). Paragraphs 3.03(3)(h), (i) (j) and (k) relate to the evidence of identity that certain visa holders must show the immigration clearance officer. These visa holders are included under the provisions of the amended paragraph 3.03(4)(a).

 

Item [5] – Paragraph 3.03(4)(a)

 

This item substitutes paragraph 3.03(4)(a) in Part 2 of the Principal Regulations with new paragraph 3.03(4)(a).

 

New paragraph 3.03(4)(a) prescribes the way in which non-citizens provide evidence of their visa grant to the immigration clearance officer. It is no longer necessary for non-citizens to show the officer a label as evidence of a visa grant, unless the visa grant was evidenced by a label and the immigration clearance officer requests to see the label.

 

Item [6] – Subregulations 3.03(6) and (7)

 

This item omits subregulations 3.03(6) and 3.03(7) from Part 2 of the Principal Regulations.

 

This amendment is consequential to the amendment of paragraph 3.03(4)(a) by these regulations (item [5]). Subregulations 3.03(6) and 3.03(7) relate to the evidence of identity that certain visa holders must show an immigration clearance officer. These visa holders are included under the provisions of the amended paragraph 3.03(4)(a).

 

Item [7] – Schedule 9, Part 1, items 24 and 26 to 30

 

This item omits items 24, 26, 27, 28, 29 and 30 from Part 1 of Schedule 9 to the Principal Regulations.

 

This amendment is consequential to the omission of paragraphs 3.03(3)(h), (i), (j) and (k) and subregulations 3.03(6) and 3.03(7) by these regulations (items [4] and [6]). Items 24 and 26 to 30 relate to the evidence of identity that certain visa holders must show an immigration clearance officer. These visa holders are included under the provisions of the amended paragraph 3.03(4)(a) (see Item [5]).

Schedule 8 – Amendments of Schedule 2 relating to the primary criteria to be satisfied at the time of decision for visa grant

 

Item [1] - Amendments

 

This item inserts a clause into the time of decision criteria for primary visa applicants of certain Parts in Schedule 2 to the Principal Regulations listed in subitem (3).

 

The primary time of decision criteria prescribe the requirements that need to be met by at least one member of the family unit at the time of decision to grant or refuse a visa.

 

The new clause requires the visa applicant to hold an unaltered valid passport that was issued by an official source, unless the Minister is satisfied that it would be unreasonable to require the applicant to hold a passport.

 

The purpose of these amendments is to ensure that passport details are collected prior to visa grant and are also available for entry processing purposes, including immigration clearance.

 

Schedule 9 – Amendments of Schedule 2 relating to the secondary criteria to be satisfied at the time of decision for visa grant

 

Item [1] - Amendments

 

This item inserts a clause into the time of decision criteria for secondary visa applicants in Schedule 2 of the Principal Regulations, after the clauses listed in subitem (3).

 

The secondary time of decision criteria prescribe the requirements that need to be met by members of the family unit of the primary visa applicant at the time of decision.

 

The new clause requires the visa applicant to hold an unaltered valid passport that was issued by an official source, unless the Minister is satisfied that it would be unreasonable to require the applicant to hold a passport.

 

The purpose of these amendments is to ensure that passport details are collected prior to visa grant and are also available for entry processing purposes, including immigration clearance.

 

Schedule 10 – Amendments of Schedule 2 relating to ways of giving evidence of a visa grant

 

Item [1] - Amendments

 

This item substitutes Division 7 in certain Parts in Schedule 2 to the Principal Regulations with a new Division 7. The Parts are listed in subitem (3).

 

New Division 7 provides for the way in which the visa applicant is given evidence of a visa grant.  The purpose of these amendments is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport.

 

 

Schedule 11 - Amendments of Schedule 2 relating to ways of giving evidence of grant of a Refugee or Humanitarian visa

 

Item [1] - Amendments

 

This item substitutes Division 7 in certain Parts in Schedule 2 to the Principal Regulations with a new Division 7. The Parts are listed in subitem (3).

 

New Division 7 provides for the way in which the visa applicant is given evidence of a visa grant.  The purpose of these amendments is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport or valid Convention travel document.

 

Schedule 12 – Amendments of Schedule 2 relating to ways of giving evidence of grant of a Protection visa

 

Item [1] – Clauses 695.711 and 695.712

 

This item substitutes clauses 695.711 and 695.712 in Schedule 2 to the Principal Regulations with new clauses 695.711 and 695.712.

 

New clauses 695.711 and 695.712 provide for the way in which the visa applicant is given evidence of a visa grant. The purpose of this amendment is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport or valid Convention travel document or a form that has been approved by the Minister.

 

Item [2] – Clause 785.711

 

This item substitutes clause 785.711 in Schedule 2 to the Principal Regulations with new clauses 785.711 and 785.712.

 

New clauses 785.711 and 785.712 provide for the way in which the visa applicant is given evidence of a visa grant. The purpose of this amendment is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport or valid Convention travel document or a form that has been approved by the Minister.

 

Item [3] – Clause 800.711

 

This item substitutes Clause 800.711 in Schedule 2 to the Principal Regulations with new clauses 800.711 and 811.712.

 

New clauses 800.711 and 800.712 provide for the way in which the visa applicant is given evidence of a visa grant. The purpose of this amendment is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport, valid Convention travel document or a form that has been approved by the Minister.

 

 

 

Item [4] – Clause 866.711

 

This item substitutes Clause 866.711 in Schedule 2 to the Principal Regulations with new clauses 866.711 and 866.712.

 

New clauses 866.711 and 866.712 provide for the way in which the visa applicant is given evidence of a visa grant. The purpose of this amendment is to make it discretionary, rather than mandatory, to issue a label as evidence of a visa grant. The label is issued according to policy guidelines. If a label is issued, it is affixed to a valid passport, valid Convention travel document or a form that has been approved by the Minister.

 

Schedule 13 – Amendment of Schedule 2 relating to ways of giving evidence of grant of a Subclass 070 (Bridging (Removal Pending)) visa

 

Item [1] – Clauses 070.711 and 070.712

 

This item substitutes clauses 070.711 and 070.712 in Schedule 2 to the Principal Regulations with new clauses 070.711 and 070.712.

 

This amendment makes stylistic changes to the wording of clauses 070.711 and 070.712 to ensure consistency of expression.