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MIGRATION REFORM (TRANSITIONAL PROVISIONS) REGULATIONS (AMENDMENT) 1994 NO. 281

MIGRATION REFORM (TRANSITIONAL PROVISIONS) REGULATIONS (AMENDMENT) 1994 NO. 281

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 281

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

Subject - Migration Reform Act 1992

Migration Reform (Transitional Provisions) Regulations (Amendment)

Section 42 of the Migration Reform Act 1992 ("the Reform Act") provides that the Governor-General may make regulations prescribing matters required or permitted by the Reform Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Reform Act.

In addition, regulations may be made pursuant to the following powers:

-       subsection 40(2) of the Reform Act provides that the regulations may provide that a specified provision of the Migration Act 1958 as in force immediately before 1 September 1994 ("the old Act") repealed or amended by the Reform Act is to continue to apply to specified persons, in specified circumstances, or in relation to visas in a specified class of the Migration Act 1958 as in force on and after 1 September 1994 ("the amended Act");

-       subsection 40(4) of the Reform Act provides that regulations made under subsection 40(2) may provide that a specified provision is to apply or not apply:

•       to a specified extent; or

•       with specified modifications (not being the modification of a penalty); or

•       as if a specified status or specified situation were another specified status or specified situation; or

•       as if a person who had a specified status, specified visa or prescribed permit had another specified status, specified visa or prescribed permit;

-       subsection 40(6) of the Reform Act provides that the regulations may provide that, from 1 September 1994, specified persons are to be taken to have been granted visas in a specified amended Act class; and

-       subsection 40(8) of the Reform Act provides that the regulations may provide that applications made before a specified date or other specified applications for visas or entry permits in a specified old Act class may continue to be dealt with under the pre1 September 1994 legislation, and that the old Act class visas or entry permits consequently granted are to be taken to be visas in a specified amended Act class.

Sections 40 and 42 of the Reform Act will not commence until 1 September 1994. However, subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act that is not to come into operation immediately upon its enactment is expressed to confer power to make regulations, then, unless the contrary intention appears, that power may be exercised before the Act comes into operation as if it had come into operation.

The purpose of the Regulations is:

-       to clarify the meaning of the term "reporting condition";

-       to ensure that where a visa or entry permit applied for before 19 December 1989 is granted following reconsideration of a refusal of the application, the applicant is taken to be granted a transitional visa of the applicable class;

-       to provide for visa and entry permit applications made before 1 September 1994 and not decided on that date to benefit from more flexible provisions, to be introduced from 1 September 1994, for the Minister to waive certain public interest criteria; and

-       to enable applications for review of a decision to refuse an application made before 1 September 1994 for the grant of a visa or entry permit to be combined in cases where the primary applications were combined.

The Regulations commence on 1 September 1994.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for these Regulations to commence on 1 September 1994.

Regulation 2 - Amendment

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

Regulation 3 - Regulation 3 (Interpretation)

This regulation amends the definition of "reporting condition" in regulation 3 of the Migration Reform (Transitional Provisions) Regulations by omitting the words "an illegal entrant" and substituting the words "a non-citizen". This amendment is necessary as the term "illegal entrant" does not cover all non-citizens who may be subject to a reporting condition on commencement of the Migration Reform (Transitional Provisions) Regulations on 1 September 1994.

Regulation 4 - Regulation 21 (Visa and entry permit applications made before 19 December 1289

This regulation omits subregulation 21(1) of the Migration Reform (Transitional Provisions) Regulations and substitutes a new subregulation. The purpose of the new subregulation is to ensure that the provisions of regulation 21 apply to an application for the grant of a visa or entry permit made before 19 December 1989 and to an application for reconsideration of the refusal of such an application.

Regulation 5_ - New regulation 23A

This regulation inserts a new regulation 23A - Application of public interest criteria 4007 and 4008 in the Migration Reform (Transitional Provisions) Regulations. The effect of this amendment is to ensure that persons with outstanding applications on 1 September 1994 who are subject to public interest criterion 4007 or 4008 will have the benefit of a flexible waiver of these criteria that operates from 1 September 1994. Regard should be had to regulation 25 of the Migration Regulations (Amendment) which commences on 1 September 1994.

Regulation 6 - New Division 2A of Part 7

This regulation inserts a new Division 2A - Combined applications for review - in Part 7 of the Migration Reform (Transitional Provisions) Regulations.

The purpose of the new division is to enable the combining of two or more applications for review of decisions to refuse applications made prior to 1 September 1994 for the grant of a visa or entry permit. The review applications may only be combined where the primary applications under the Migration (1989) Regulations or the Migration (1993) Regulations were also combined. The definition of "pre-reform visa application" in new regulation 30A Interpretation - sets out the applications to which the new Division 2A applies. New regulation 30B provides for the combining of applications for internal review. New regulation 30C provides for the combining of applications for review by the Immigration Review Tribunal.

Provision for the combining of review applications in respect of applications for the grant of visas made on and after 1 September 1994 is made by regulations 4.03 and 4,12 of the Migration Regulations. The effect of the new Division 2A of the Migration Reform (Transitional Provisions) Regulations is to extend provision for combined review applications to applications in respect of visa and entry permit applications made before 1 September 1994 where the primary applications were also combined.

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