Commonwealth Consolidated Regulations

MIGRATION REFORM (TRANSITIONAL PROVISIONS) REGULATIONS - REG 19A

(1)

There is a class of permanent visas called Special Circumstance visas.

(2)

A non-citizen who meets the requirements of subregulation (3) or

(4)

is taken to have been granted a Special Circumstance visa on 1 September 1994.

(3)

A non-citizen meets the requirements of this subregulation if:

(a)

the non-citizen was born in Papua New Guinea before 16 September 1975 (`Independence Day'); and

(b)

before Independence Day, the non-citizen became an Australian citizen under section 10, or paragraph 25 (1) (a), of the Australian Citizenship Act 1948 ; and

(c)

on Independence Day, the non-citizen ceased to be an Australian citizen by operation of the Papua New Guinea Independence (Australian Citizenship) Regulations; and

(d)

the non-citizen is not a person who:

(i)

having ceased to be an Australian citizen as mentioned in paragraph (c), is taken, by operation of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations, to have re-acquired Australian citizenship on Independence Day; and

(ii)

subsequently ceased to be an Australian citizen by operation of regulation 3 of those Regulations; and

(e)

the non-citizen:

(i)

has parental links with Australia (within the meaning of subregulation (5)); or

(ii)

is a person to whom an Australian passport was issued on or after Independence Day; or

(iii)

is a person with parental passport links with Australia (within the meaning of subregulation (6)); or

(iv)

is a person whose name was registered:

(A)

under section 11 of the Australian Citizenship Act 1948 (as that section was in force before 22 November 1984) on or after Independence Day; or

(B)

under section 10B of the Australian Citizenship Act 1948 on or after 22 November 1984; or

(v)

is a person in relation to whom a written record of the giving to the person of notification from a Commonwealth Department to the effect that the person was, at the time of giving the notification, an Australian citizen can be produced (whether that notification was correct or not and whether the person has subsequently been notified to the contrary or not); and

(g)

the non-citizen was not a citizen of a country other than Papua New Guinea on 1 September 1994; and

(h)

the non-citizen has been in Australia for a period of, or for periods that together amount to, at least 2 years during the period from 1 September 1989 to 1 September 1994 (inclusive); and

(j)

either:

(i)

the non-citizen is in Australia on 1 November 1995 but is not the holder of either a permanent visa or a transitional (permanent) visa; or

(ii)

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 (in accordance with subregulation (7)).

(4)

A non-citizen meets the requirements of this subregulation if:

(a)

the non-citizen is a natural, or adoptive, child or grandchild, of a person who meets the requirements of subregulation (3); and

(b)

the non-citizen was not a citizen of a country other than Papua New Guinea on 1 September 1994; and

(c)

either:

(i)

the non-citizen is in Australia on 1 November 1995 but is not the holder of either a permanent visa or a transitional (permanent) visa; or

(ii)

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 (in accordance with subregulation (7)).

(5)

For the purposes of subparagraph (3) (e) (i), a non-citizen has parental links with Australia if a natural, or adoptive, parent of the non-citizen:

(a)

either:

(i)

was an Australian citizen immediately before Independence Day; or

(ii)

died before Independence Day but was an Australian citizen on the date of his or her death; and

(b)

either:

(i)

did not have 2 grandparents who were born in Papua New Guinea, or the adjacent area (within the meaning of subsection 65 (3) of the Constitution of the Independent State of Papua New Guinea as in force on Independence Day); or

(ii)

had a right of permanent residence in Australia immediately before Independence Day or on the date of his or her death, as the case requires.

(6)

For the purposes of subparagraph (3) (e) (iii), a non-citizen has parental passport links with Australia if:

(a)

the person is a natural, or adoptive, child of a person to whom an Australian passport was issued on or after Independence Day; and

(b)

particulars of the child were included in an endorsement of that passport under regulation 11 of the Passports Regulations as that regulation was in force before 20 August 1986; and

(c)

that passport did not also include an endorsement to the effect that the child had not acquired Australian citizenship.

(7)

For the purposes of subparagraphs (3) (j) (ii) and (4) (c) (ii), a non-citizen produces satisfactory evidence of a purported entitlement to enter Australia if:

(a)

the non-citizen presents to an officer an Australian passport that has not expired and:

(i)

in the case of a non-citizen who claims to meet the requirements of subregulation (3) — was issued to the non-citizen; or

(ii)

in the case of a non-citizen who claims to meet the requirements of subregulation (4) — was issued to, or endorsed to include, the non-citizen; or

(b)

before 1 November 1996, the non-citizen presents to an officer evidence:

(i)

in the case of a non-citizen who claims to meet the requirements of subregulation (3) — that paragraph (3) (e) applies to the non-citizen; or

(ii)

in the case of a non-citizen who claims to meet the requirements of subregulation (4) — that paragraph (3) (e) applies to the non-citizen or to a natural, or adoptive, parent or grandparent of the non-citizen.

(8)

A Special Circumstance visa is a permanent visa permitting the holder to travel to, and enter, Australia:

(a)

in the case of a non-citizen referred to in paragraph (7) (a):

(i)

if the day on which the person presents the relevant passport is before 1 November 1996 — for a period of 4 years from that day; or

(ii)

if the day on which the person presents the relevant passport is on or after 1 November 1996 — for a period of 5 years from that day; and

(b)

in any other case — until 31 October 1999.

(9)

It is declared, pursuant to subsection 40 (3) of the Reform Act, that subsection 82 (2) of the amended Act does not apply in relation to a Special Circumstance visa taken to be granted to a person to whom a substantive

(temporary)

visa was granted during the period from 1 September 1994 to 31 October 1995 (inclusive).

(10)

In this regulation:

(a)

an Australian passport that was issued as a result of a mistake on the part of a person acting on behalf of the Commonwealth; and

(b)

an Australian passport that has expired (whether the passport was issued as a result of a mistake or not);

but does not include:

(c)

an Australian passport that was issued on the basis of any false or misleading statement (whether made orally or in writing); or

(d)

an Australian passport that has been altered since its issue; or

(e)

an Australian passport, or other document, in relation to which an act referred to in section 9B of the Passports Act 1938 has been performed.