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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 392
EXPLANATORY STATEMENTSTATUTORY RULES 1992 No. 392
Issued by the Authority of the Minister for Immigration, Government and Ethnic Affair
Migration Act 1958
Migration Regulations (Amendment)
Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition sections 23 and 33 of the Act enable regulations to be made providing for different classes of visas and entry permits. The purpose of the Regulations is to:
• to prescribe certain Commonwealth, State or Territory laws (in relation to fishing, quarantine and customs), an offence against which, when committed on a vessel (other than an aircraft) leads, for the purposes of the Act, to the person when disembarking to be deemed not to have entered Australia;
• to require marital relationships to be genuine and continuing before spouses can be granted a PRC (temporary) visa or a PRC (temporary) entry permit;
• to insert a new refugee (transitional) entry permit to enable grant of permanent residence to persons who had been granted refugee status on or before 11 July 1990 but who had not applied for permanent residence before the visas and entry permits providing for grant of permanent residence to persons with refugee status, were repealed by Statutory Rules No. 237 of 1990;
• insert definitions of "associate diploma", "degree", "diploma", "post secondary educational qualification other than a degree, diploma, associate diploma or trade certificate" and "trade certificate" into regulation 146;
• to insert a new regulation 148AB which provides for domestic travellers on international flights to produce certain forms of identification; and
• to correct a number of minor errors of a non-policy nature.
Apart from regulation 4 the Regulations will commence on gazettal. Regulation 4 will commence on 1 December 1992. This regulation corrects a technical error and no person will be disadvantaged. The retrospectivity is therefore not in conflict with the Acts Interpretation Act 1901.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides for regulation 4 to commence on 1 December 1992. This regulation corrects a typographical error which came into effect on 1 December 1992, and no-one is disadvantaged by the correction.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - New regulations 9B and 9G
Subregulation 4(5A) of the Act provides that if an officer believes that a person was on board a vessel, other than an aircraft, when it was used in connection with the commission of an offence against a prescribed Commonwealth or State law, the person is taken to have not entered Australia when he or she disembarked from the vessel.
Section 100B makes provision for the master, owner agent or charterer of a vessel to be liable for certain costs where a person who travelled to Australia on that vessel is in custody under subsection 88(3) of the Act and while in custody is convicted of an offence against a prescribed Commonwealth or State law.
This regulation inserts a new regulation 9B into the Migration Regulations (Prescribed laws -paragraph 4(5A)(b) of the Act) to prescribe Commonwealth and State laws (all of which relate to fishing, customs or quarantine) for the purposes of paragraph 4(5A)(b) of the Act.
This regulation also inserts a new regulation 9C into the Migration Regulations (Prescribed laws - paragraph 100B(b) of the Act) to prescribe Commonwealth and State laws relating to fishing for the purposes of paragraph 100B(b) of the Act.
Regulation 4 Regulation 40 (prescribed change in circumstances (paragraphs 36(1)(a) and 37(2)(a) of the Act))
This regulation corrects a typographical error in paragraph 40(1)(u) of the Migration Regulations. As no-one is disadvantaged by the correction it has been made retrospective to 1 December 1992 when the paragraph came into effect.
Regulation 5 - Regulation 98F (English language test)
This regulation corrects a typographical error in regulation 98F of the Migration Regulations.
Regulation 6 - Regulation 107B (PRC (temporary) visa)
This regulation omits paragraph 107(1)(b) of the Migration Regulations and substitutes a new paragraph 107B(1)(b). This new paragraph includes an extra criterion to require that where an applicant is the spouse of a principal person, the spouse and the principal person must have a relationship that is not only legal but also genuine and continuing. This amendment is necessary to avoid the potential for abuse by "marriages of convenience".
Regulation 7 -_Regulation 119H (PRC (temporary) entry permit)
Paragraph 119H(1)(ca) of the Migration Regulations provides that a PRC (temporary.) entry permit may not be granted to a person who previously held a such an entry permit and it was cancelled because the applicant travelled to the PRC.
This regulation omits paragraph 119H(1)(ca) of the Migration Regulations and substitutes a new paragraph 119H(1)(ca) which provides that a PRC entry permit cannot be granted to a person who previously held a PRC (temporary) entry permit which was cancelled or terminated because any condition was breached.
This regulation also omits paragraph 119H(1B)(c) of the Migration Regulations and substitutes a new paragraph 119H(1B)(c). This new paragraph includes an extra criterion requiring that where an applicant is the spouse of the holder of a PRC (temporary) entry permit, the spouse and the holder must have a relationship that is not only legal, but also genuine and continuing. This amendment is necessary to avoid the potential for abuse by "marriages of convenience".
Regulation 8 - New Regulation 130
Statutory Rules No 237 of 1990 repealed the regulations which enabled grant of permanent residence to refugees. However, a small number of people had been granted refugee status but had not applied for permanent residence when this repeal came into effect on 12 July 1990.
This regulation adds a new regulation 130 - refugee (transitional) entry permit - for persons who were determined by the Minister to be refugees on or before 11 July 1990. This entry permit will be valid for the purposes of section 47 of the Act ie a holder can be granted a permanent entry permit.
Regulation 9 - Regulation 142A (Refugee (permanent) entry permit)
This regulation amends paragraph 142A(b) of the Migration Regulations to enable grant of a refugee (permanent) entry permit to an applicant who holds a refugee (transitional) entry permit (inserted into the Migration Regulations by regulation 11 above).
Regulation 10 - Regulation 146 (Qualifications - suitability for employment)
The absence of precise definitions of the educational qualifications referred to in regulation 146 has led to difficulties in allocating points for the skill sub-factor for the points test.
This regulation inserts definitions of "associate diploma", "degree", "diploma", "post secondary educational qualification other than a degree, diploma, associate diploma or trade certificate" and "trade certificate".
Regulation 11 - Regulation 148AA (Provision of information - general requirement)
This regulation makes a minor stylistic amendment to subregulation 148AA.
Regulation 12 - New regulation 148AB
This regulation inserts a new regulation 148AB into the Migration Regulations to provide that domestic passengers (other than a child under 16 travelling with parents), travelling on a domestic sector of an international flight, must produce identification. The acceptable forms of identification are listed.
In addition, an officer is to be able to require a domestic passenger to endorse certain information on the passenger's airline boarding pass.
These amendments are necessary in order to be able to clearly identify which passengers are from overseas and therefore require visas or other travel documentation.
Regulation 13 - Regulation 186B (Fee on application for a spouse (after entry) entry permit)
This regulation omits paragraph 186B(1)(b) of the Migration Regulations and substitutes a new paragraph 186(1)(b) in order to correct an error made when this paragraph was substituted by Statutory Rules No. 346 of 1992.
Regulation 14 - Schedule 3 (Classes of entry permits)
This regulation adds a new item 94A to Schedule 2 of the Migration Regulations as a result of the introduction of the new refugee (transitional) entry permit (inserted into the Migration Regulations by regulation 11 of these regulations).
Regulation 15 - Schedule 8 (Fees)
This regulation adds a new item 28 to Part 2 of Schedule 8 of the Migration Regulations as a result of the introduction of the new refugee (transitional) entry permit (inserted into the Migration Regulations by regulation 11 of these regulations). There will be no fee for the refugee (transitional) entry permit.