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MIGRATION (1993) REGULATIONS (AMENDMENT) 1993 NO. 309

MIGRATION (1993) REGULATIONS (AMENDMENT) 1993 NO. 309

EXPLANATORY STATEMENT

STATUTORY RULES 1993 No. 309

Issued by the Authority of the Minister for Immigration and Ethnic Affair

Subject - Migration Act 1958

Migration (1993) Regulations (Amendment)

Section 181 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 by the Act to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act. Without limiting the generality of section 181, section 23 of the Act enables regulations to be made providing for different classes of visas and section 33 of the Act enables regulations to be made providing for different classes of entry permits.

In addition, subparagraph 181(1)(a)(i) 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.

The purpose of the Regulations is:

-       to impose a fee of $100 for the assessment of a person's work qualifications and experience by the National Office of Overseas Skills Recognition or the Department of Industrial Relations, for the purposes of assessing the person's eligibility to satisfy the criteria for the grant of a visa or entry permit;

-       to enable applications for student entry permits to be made by students who are illegal entrants but who lodged documents with an educational institution or the Department of Employment, Education and Training establishing their eligibility for further stay as students, provided the application for a student entry permit is made within twelve months of the student becoming an illegal entrant. Previously this provision was available to students who applied before 1 June 1993. These Regulations extend the provision to all students who apply within twelve months of becoming illegal;

-       to implement the government's decision to place a limitation on the number of Iranian postgraduate students in Australia and to place conditions on all student visas and entry permits granted to Iranian nationals which prevent the holders from undertaking or changing postgraduate courses, or bridging or prerequisite courses necessary to undertake postgraduate courses, without the permission of the Minister following assessment by the competent Australian authorities that the holder is not likely to be directly or indirectly a risk to Australian national security. These Regulations implement the government's decision by:

•       creating a new class of visas and entry permits, Class 562 (Iranian postgraduate student). The number of Class 562 visas which may be granted will be limited to a number specified by the Minister by notice in the Gazette;

•       preventing the grant of a student visa in another class to an Iranian postgraduate student who is eligible for grant of a Class 562 visa;

•       imposing conditions on all student visas and entry permits granted to Iranian nationals which prevent changes in postgraduate courses, or changes to postgraduate courses, by the holder without the prior approval of the Minister after consultation with the competent Australian authorities; and

•       creating a new class of visas and entry permits, Class 563 (Iranian postgraduate student (dependant)), to enable the entry and stay in Australia of the members of family units of Iranian postgraduate students. There will be no restrictions placed on the number of Class 563 visas which may be granted, but all Class 563 visas and entry permits will be subject to a condition preventing the holder from undertaking a postgraduate course without the prior approval of the Minister; and

-       to make a number minor clarifying amendments which have no effect on the substantive operation of the Migration (1993) Regulations.

The regulations commence on gazettal, apart from the regulations which extend the provisions enabling applications for student entry permits by certain students who are illegal entrants. Those regulations (subregulations 9.7, 9.8, 9.18 and 9.19) commence on 1 June 1993, the date the earlier provisions ceased. Retrospective commencement of these provisions ensures continuation of special provisions for these students, as intended. This is entirely beneficial to the students concerned and is not detrimental to any person. Retrospective operation of these provisions is therefore consistent with the provisions of the Acts Interpretation Act 1901.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for subregulations 9.7, 9.8, 9.18 and 9.19 to be taken to have commenced on 1 June 1993. These regulations extend the operation of special provisions for certain students who have become illegal entrants to apply for student entry permits. The existing provisions ceased operation on 1 June 1993, and retrospective commencement from that date ensures the continuous operation of the provisions. Retrospective operation is entirely beneficial to the students concerned and it is not detrimental to any person. It therefore does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

The remainder of these Regulations commence on gazettal.

Regulation 2 - Amendment

This regulation provides for the Migration (1993) Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 1.3 (Interpretation)

Subregulations 3.1 and 3.2 omit the definitions of "category A course" and "category B course", respectively, in regulation 1.3 of the Migration (1993) Regulations, and substitute new definitions.

The definitions have been redrafted in the light of comments by the Senate Standing Committee on Regulations and Ordinances. The new definitions do not involve a substantive change in policy. The redrafting is intended to ensure that the definitions directly incorporate the provisions of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991. The Senate Standing Committee had raised concerns as to the validity of the current definitions which do not directly incorporate the provisions of this Act.

Subregulation 3.3 omits the definition of "CTC" from regulation 1.3 of the Migration (1993) Regulations. The definition is no longer required because as a result of amendments made by subregulations 5.1 and 5.2 and subregulations 11.1, 11.2 and 11.3 of these Regulations the term is no longer used in the Migration (1993) Regulations.

Regulation 4 - Regulation 2.1 (Classes and groups of visas and entry permits that may be granted)

This regulation inserts a new subregulation 2.1(2) in the Migration (1993) Regulations. The purpose of the new subregulation is to put it beyond doubt that a visa or entry permit may not be granted to a person as a secondary person under Schedule 3 unless there is specific provision for grant of a visa or entry permit to a secondary person indicated in column 3 of Schedule 1.

Regulation 5 - Regulation 2.4 (prescribed qualifications and prescribed number of points

Subregulations 5.1 and 5.2 amend subregulation 2.4(4) of the Migration (1993) Regulations to remove the reference to "a CTC" from the definition of "relevant Australian authority". Separate reference to a CTC (a Central Committee within the meaning of Part II, III, IV, V or VIA of the Tradesmen's Rights Regulation Act 194) is not required as it is included in the reference to the Department of Industrial Relations.

Regulation 6 - Regulation 2.15 (Special provision for grant outside Australia of certain visas to former holders of corresponding temporary entry permits

This regulation inserts a new subparagraph 2.15(2)(b)(iia) in the Migration (1993) Regulations. The effect of the new subparagraph is to prevent the grant of a Class 562 (Iranian postgraduate student) visa for the purpose of return travel to Australia by a person who was previously in Australia as the holder of a Class 562 entry permit. This reflects the policy intention that a Class 562 visa is to be used for initial entry to Australia only. An Iranian postgraduate student in Australia as the holder of a Class 562 entry permit who wishes to travel from and return to Australia must apply for a Class 560 student visa after entry.

Regulation 7 - New regulation 7.31

This regulation inserts a new regulation in the Migration (1993) Regulations - regulation 7.31 - Fee for assessment of a person's work qualifications and experience. The purpose of the new regulation is to impose a fee of $100 on an application by a person for an assessment of his or her occupational qualifications or experience or both by the National Office of Overseas Skills Recognition or the Department of Industrial Relations, where the assessment is required for the purposes of the Migration (1993) Regulations.

Regulation 8 - Schedule 1 (Classification of visas and entry permits)

This regulation inserts two new items in Division 2.2 - Group 2.2 (Student) of Schedule 1. Schedule 1 lists all classes of visa and entry permit. The new classes are Class 562 (Iranian postgraduate student) and Class 563 (Iranian postgraduate student (dependant)) visas and entry permits.

Regulation 9 - Schedule 2. chapter 2.2 (Student visas and entry permits)

Part 560 - Class 560 (Student (category A)) visa and entry permit

Subregulation 9.1 inserts a new clause 560.322 in the Migration (1993) Regulations. The effect of the new clause is to prevent the grant of a Class 560 visa before entry to an Iranian postgraduate student - that is, a student who is an Iranian citizen seeking entry to Australia to undertake a fulltime course of postgraduate study or a bridging or prerequisite course necessary to undertake a postgraduate course. This provision implements the policy that the number of Iranian postgraduate students in Australia is to be limited by restricting the number of Class 562 visas which may be granted. Iranian postgraduate students who cannot be granted a Class 562 visa because of the restriction on the numbers of visas in that class are not eligible for the grant of a student visa in any other class.

Subregulation 9.2 omits clause 560.331 of the Migration (1993) Regulations and substitutes a new clause 560.331. The new clause provides that all criteria to be met at the time of application for a Class 560 visa must continue to be met at the time of decision on the application. The effect of this is that the restriction on persons eligible for a Class 562 visa applying for a Class 560 visa applies at both the time of application for the Class 560 visa and at the time of decision on that application.

Subregulation 9.3 omits subclause 560.341(1) of the Migration (1993) Regulations and substitutes a new subclause 560.341(1). The new subclause substantively repeats the provisions of the omitted subclause and adds the provision that a Class 560 visa granted before entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Subregulation 9.4 amends the leading note in Division 560.4 of the Migration (1993) Regulations to reflect the provision that holders of the new Class 562 visa must obtain a Class 560 visa after entry for the purpose of travelling outside of and returning to Australia.

Subregulation 9.5 amends paragraph 560.421(2)(a) of the Migration (1993) Regulations, with the effect of enabling the holder of a Class 562 entry permit to meet the criterion of the paragraph at the time of application for the grant of a Class 560 visa.

Subregulation 9.6 omits subclause 560.441(1) of the Migration (1993) Regulations and substitutes a new subclause 560.441(1). The new subclause substantively repeats the provisions of the omitted subclause and adds the provision that a Class 560 visa granted after entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Subregulation 9.7 amends paragraph 560.721(2)(b) of the Migration (1993) Regulations by omitting the words "at any time after 1 January 1990 but". An applicant is able to satisfy the criterion if he or she gave documents relevant to establishing his or her eligibility for the grant after entry of a Class 560 entry permit to the Department of Employment, Education and Training or to an Australian educational institution at any time before the expiry of his/her previous Group 2.2 (student) entry permit. Operation of subregulation 9.7 is made retrospective to 1 June 1993. This is entirely beneficial to the applicants concerned and is not detrimental to any person. Retrospective operation of this amendment therefore does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 9.8 amends paragraph 560.721(2)(c) of the Migration (1993) Regulations by omitting the words "before 1 June 1993" and substituting the words "within 12 months after the expiry of the entry permit mentioned in paragraph (a)". An applicant is able to satisfy the criterion of paragraph 560.721(2)(c) provided he or she made the application within 12 months of the expiry of his or her previous Group 2.2 (student) entry permit.

Operation of subregulation 9.8 is made retrospective to 1 June 1993. This is entirely beneficial to the applicants concerned and is not detrimental to any person. Retrospective operation of this amendment does not, therefore, contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 9.9 amends subparagraph 560.732(a)(i) of the Migration (1993) Regulations by inserting ", or the holder of a class 562 entry permit" after "entry permit". This enables the holder of a class 562 entry permit to apply for a Class 560 entry permit after entry.

Subregulation 9.10 amends subparagraph 560.732(b)(i) of the Migration (1993) Regulations by inserting ", or the holder of a class 562 entry permit" after "entry permit". This enables the holder of a class 562 entry permit to apply for a Class 560 entry permit after entry.

Subregulation 9.11 omits paragraph 560.732(c) of the Migration (1993) Regulations and substitutes a new paragraph 560.732(c).

New subparagraph 560.732(c)(i) does not change the substantive operation of the omitted subparagraph but makes an additional provision to the effect that an Iranian postgraduate student may satisfy the criteria for grant of a Class 560 entry permit after entry although unable to satisfy the criterion specified in clause 560.322 for a Class 560 visa before entry. This reflects the policy that Iranian postgraduate students must use a Class 562 visa for initial entry to Australia, but may then apply for a Class 560 entry permit if seeking to extend his or her stay as a student.

New subparagraph 560.732(c)(ii) makes it clear that a person who becomes a student's dependant after having held a student entry permit as a primary person or a temporary entry permit of another group is not permitted thereafter to be granted a student entry permit as a primary person. The term "student's dependant" is defined in the new subclause 560.732(2) inserted by subregulation 9.12 of these Regulations.

Subregulation 9.12 inserts a new subclause 560.732(2) in the Migration (1993) Regulations, to define the term "student's dependant" for the purposes of subparagraph 560.732(1)(c)(ii). The definition does not substantively change the operation of 560.732(1)(c)(ii) except to include holders of the new Class 563 entry permit.

Subregulation 9.13 inserts a new paragraph 560.741(1)(aa) in the Migration (1993) Regulations. The new paragraph adds the provision that a Class 560 entry permit granted after entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Pan 561 - Class 561 (Student (category B)) visa and entry permit

Subregulation 9.14 inserts a new clause 561.322 in the Migration (1993) Regulations. This subregulation has the same effect in respect of the Class 561 visa as subregulation 9.1 has in respect of the Class 560 visa. Iranian postgraduate students who cannot be granted a Class 562 visa because of the restriction on the numbers of visas in that class are not eligible for the grant of a student visa in any other class.

Subregulation 9.15 omits clause 561.331 of the Migration (1993) Regulations and substitutes a new clause 561.331 which provides that a person who meets the criteria of clause 561.321 and the new clause 561.322 (inserted by subregulation 9.14 of these Regulations) at the time of application for a Class 561 visa before entry must continue to meet those criteria at the time of decision.

Subregulation 9.16 omits subclause 561.341(1) of the Migration (1993) Regulations and substitutes a new subclause 561.341(1). The new subclause substantively repeats the provisions of the omitted subclause and adds the provision that a Class 561 visa granted before entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Subregulation 9.17 omits subclause 561.441(1) of the Migration (1993) Regulations and substitutes a new subclause 561.441(1). The new subclause substantively repeats the provisions of the omitted subclause and adds the provision that a Class 561 visa granted after entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Subregulation 9.18 amends paragraph 561.721(2)(b) of the Migration (1993) Regulations by omitting the words "at any time after 1 January 1990 but". The effect of this amendment is similar to that stated in subregulation 9.7 above. Operation of subregulation 9.18 is made retrospective to 1 June 1993. This is entirely beneficial to the applicants concerned and is not detrimental to any person. Retrospective operation of this amendment therefore does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 9.19 amends paragraph 561.721(2)(c) of the Migration (1993) Regulations by omitting the words "before 1 June 1993" and substituting the words "within 12 months after the expiry of the entry permit mentioned in paragraph (a)". The effect of this amendment is similar to that stated in subregulation 9.8 above. Operation of subregulation 9.19 is made retrospective to 1 June 1993. This is entirely beneficial to the applicants concerned and is not detrimental to any person. Retrospective operation of this amendment therefore does not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 9.20 amends paragraph 561.731(b) of the Migration (1993) Regulations by inserting after "visa" the words "other than the criterion specified in clause 561.322". This amendment enables an Iranian postgraduate student to satisfy the criteria for grant of a Class 561 entry permit after entry although unable to satisfy the criteria for a Class 561 visa before entry. This reflects the policy that an Iranian postgraduate student must enter Australia on a Class 562 visa, but may then apply for a Class 561 entry permit after entry if seeking to extend his or her stay as a student.

Subregulation 9.21 omits paragraph 561.731(c) of the Migration (1993) Regulations and substitutes a new paragraph 561.731(c). The new paragraph makes it clear that a person who becomes a student's dependant after having held a student entry permit as a primary person or a temporary entry permit of another group is not permitted thereafter to be granted a student entry permit as a primary person. The term 'Student's dependant" is defined in the new subclause 561.731(2) inserted by subregulation 9.22 of these Regulations.

Subregulation 9.22 inserts a new subclause 561.731(2) in the Migration (1993) Regulations, to define the term "student's dependant" for the purposes of paragraph 561.731(1)(c). The definition does not substantively change the operation of paragraph 561.731(1)(c) except to include holders of the new Class 563 entry permit.

Subregulation 9.23 omits subclause 561.741(1) of the Migration (1993) Regulations and inserts a new subclause 561.741(1). The new subclause substantively repeats the provisions of the omitted subclause and adds the provision that a Class 561 entry permit granted after entry to an applicant who is an Iranian citizen is subject to the new condition 9232. The operation of this condition is described in the notes on regulation 12 of these Regulations.

Subregulation 9.24 inserts two new Parts 562 and 563 in Chapter 2 (Student visas and entry permits) of Schedule 2 of the Migration (1993) Regulations. The two new Parts prescribe the criteria for the grant of the new Class 562 (Iranian postgraduate student) and Class 563 (Iranian postgraduate student (dependant)) visas and entry permits, respectively. Details of the criteria are as follows:

Pan 562 - Class 562 (Iranian postgraduate student) visa and entry permit

The purpose of the new Class 562 visa and entry permit is to provide for travel to and temporary stay in Australia as students by Iranian nationals who wish to undertake full-time courses of postgraduate study for master's degrees or doctorates, or other bridging or prerequisite courses (including English language courses) required to undertake study for a master's degree or doctorate.

The criteria for Class 562 visas and entry permits are generally similar to those for Class 560 visas and entry permits, except for the following significant differences:

•       Creation of Class 562 implements the government's policy to limit the number of Iranian postgraduate students permitted to study in Australia. The number of Class 562 visas which may be granted in a financial year will be restricted to a number notified by the Minister in the Gazette (see clause 562.338);

•       Iranian postgraduate students who cannot be granted a Class 562 visa because of the restriction on the number of visas in that class will not be eligible for the grant of a Class 560 or Class 561 student visa (see the amendments made to the criteria for those classes by subregulations 9.1 and 9.14 of these Regulations);

•       Restrictions will be placed only on the number of Iranian postgraduate students studying in Australia and not on the number of their dependants. Class 562 visas will therefore not be granted to secondary persons. Dependants of holders of Class 562 visas and entry permits are to be granted Class 563 visas and entry permits (also created by these Regulations). No restrictions will be placed on the number of Class 563 visas which may be granted;

•       As the purpose of the visa is to restrict the number of Iranian postgraduate students entering Australia and the number of Class 562 visas will be restricted, the visa will be granted only for initial travel to Australia in order to avoid "double counting" of visas if granted after entry. Holders of Class 562 entry permits wishing to travel from and return to Australia are eligible for the grant of, Class 560 visas after entry (see subregulations 9.4 and 9.5 of these Regulations);

•       Holders of Class 562 entry permits seeking to extend their stay in Australia as students must apply for a Class 560 or Class 561 student entry permit and there is no provision for the grant of a Class 562 entry permit after entry; and

•       Class 562 visas and entry permits are subject to the new condition 9231 (inserted in Schedule 9 by regulation 12 of these Regulations) that the holder must not change his or her course of study or thesis or research topic without the approval of the Minister, given after the Minister has obtained an assessment from the competent Australian authorities that the holder is not likely to be directly or indirectly a risk to Australian national security.

Part 563 - Class 563 (Iranian postgraduate student (dependant)) visa and entry permit

The purpose of the new Class 563 visa and entry permit is to provide for travel to and temporary stay in Australia of members of the family unit of holders of Class 562 (Iranian postgraduate student) visas and entry permits.

Criteria for Class 563 visas and entry permits are generally similar to the criteria for grant of a student Class 560 or Class 561 visa or entry permit as a secondary person under Part 022 of Schedule 3 of the Migration (1993) Regulations. However, Class 563 is included in Schedule 2 and all applicants are primary persons.

The reason for this is that while the number of Class 562 visas granted will be restricted to limit the number of Iranian postgraduate students entering Australia to study, it is not intended to limit the number of dependants of Iranian postgraduate students. Grant of Class 562 visas to secondary persons under Schedule 3 would result in lowering the total number of Class 562 visas available for grant to Iranian postgraduate students. This is not the intention. A separate class for the dependants of Iranian postgraduate students has therefore been created to ensure that the number of Class 562 visas granted accurately reflects the number of Iranian postgraduate students permitted to study in Australia and does not include members of their family units.

Regulation 10 - Schedule 3 (Provisions with respect to the grant of visas and entry permits included in certain groups to secondary persons)

Subregulation 10.1 amends subdivision 022.11, subclauses 022.311(1), 022.311(2) and 022.711(1), and subparagraph 022.732(2)(a)(i) of the Migration (1993) Regulations by omitting "Group 2.2 (student)" and substituting "Class 560 or Class 561". The purpose of these amendments is to make it clear that the only classes of student visas and entry permits which may be granted to secondary persons under Schedule 3 are Class 560 and Class 561.

Subregulation 10.2 amends clauses 022.211, 022.511 and 022.521, subclauses 022.411(1), 022.411(2) and 022.711(2), and the Notes to Divisions 022.3, 022.4 and 022.7 of the Migration (1993) Regulations by omitting "Group 2.2" and substituting "Class 560 or Class 561". The purpose of these amendments is the same as that of the amendments made by subregulation 10.1 of these Regulations.

Regulation 11 - Schedule 7 (General points test - qualifications and points)

Subregulation 11.1 amends subparagraphs 7101(c)(i), 7102(e)(i) and 7104(e)(i) of the Migration (1993) Regulations by omitting the words "or such longer period as is specified by a CTC or by NOOSR". The points appropriate to the relevant item are awarded if the applicant has worked in his or her occupation or a closely related occupation for not less than three years and it is not intended to provide for a CTC or NOOSR to specify a longer period in relation to this part of the assessment.

Subregulation 11.2 omits item 7103 of the Migration (1993) Regulations and substitutes a new item 7103. The intention is that an applicant who meets the qualifications specified in item 7102 but has not worked in his or her occupation or a closely related occupation for 3 years or more is to receive the points relevant to item 7103.

Subregulation 11.3 omits subparagraph 7105(b)(i) of the Migration (1993) Regulations and substitutes a new subparagraph 7105(b)(i). The intention is that an applicant who meets the qualifications specified in paragraphs 7104(a), (b), (c) and (d) but has not worked in his or her occupation or a closely related occupation for 3 years or more is to receive the points provided in item 7105.

Regulation 12 - Schedule 9 (Visa and entry permit conditions)

This regulation adds to Part 2 - Other Conditions - of Schedule 9 of the Migration (1993) Regulations two new conditions which may be imposed on visas and entry permits. Details of the new conditions are:

9231 -       The effect of this condition is to prevent the holder from changing his or her course of study or thesis or research topic unless approval is given by the Minister, after the Minister has obtained an assessment from the competent Australian authorities that the holder is not likely to be directly or indirectly a risk to Australian national security. Condition 9231 is imposed as a mandatory condition on Class 562 (Iranian postgraduate student) visas and entry permits.

9232       The effect of this condition is to prevent the holder undertaking or changing to a postgraduate course of study or research, or thesis or research topic (or a bridging or prerequisite course required for postgraduate study) unless approval is given by the Minister, after the Minister has obtained an assessment from the competent Australian authorities that the holder is not likely to be directly or indirectly a risk to Australian national security. Condition 9232 is imposed as a mandatory condition on Class 563 (Iranian postgraduate student (dependant)) visas and entry permits, and on Class 560 (student (category A)) and Class 561 (student (category B)) visas and entry permits granted to Iranian nationals.

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