Statutory Rules 1995 No. 1351

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Migration Reform (Transitional Provisions) Regulations2 (Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958 and the Migration Reform Act 1992.

Dated 8 June 1995.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

NICK BOLKUS

Minister for Immigration and Ethnic Affairs

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1. Commencement

1.1 Regulation 3 is taken to have commenced on 1 September 1994.

1.2 The remainder of these Regulations commence on 3 July 1995.

2. Amendment

2.1 The Migration Reform (Transitional Provisions) Regulations are amended as set out in these Regulations.

3. Regulation 17 (New Zealand citizens and certain children of New Zealand citizens)

3.1 Subregulation 17 (1):

Omit “This regulation”, substitute “This subregulation”.

3.2 After subregulation 17 (1), insert:

“(1A) This subregulation applies to a non-citizen who:

(a) is the child of a New Zealand citizen; and

(b) was born in Australia on or after 20 August 1986 and before 1 September 1994; and

(d) satisfies the criteria set out in paragraphs (1) (b), (c) and (d).”.

3.3 Subregulation 17 (2):

Omit “this regulation”, substitute “subregulation (1) or (1A)”.

4. New Part 5A

4.1 After Part 5, insert:

“PART 5A—Certain APPLICATIONs Made Under Migration (1989) Regulations and Migration (1993) Regulations

Interpretation

“23B. (1) In this Part:

‘the July 1995 amendments’ means Statutory Rules 1995 No. 117.

“(2) For the purposes of this Part, an application is finally determined:

(a) when:

(i) it is finally determined within the meaning of subsection 5 (9) of the Act; and

(ii) a decision that has been made in respect of the application is not, or is no longer, subject to review under Part 8 of the Act; or

(b) if an application for reconsideration of a decision in respect of the application has been, or may be, made under the provisions continued in force by regulation 24 of these Regulations:

(i) when an application for reconsideration has been made and a decision has been made following reconsideration; or

(ii) when an application for reconsideration may no longer be made.

“(3) A reference in this Part to a criterion relating to domestic violence is a reference to a criterion that a person has suffered domestic violence (within the meaning of regulation 1.22 of the Migration Regulations).

Certain applications under the Migration (1989) Regulations—criteria related to domestic violence

“23C. (1) This regulation applies to an application for an entry permit of any of the following classes under the Migration (1989) Regulations:

(a) confirmatory (code number 808);

(b) extended eligibility (spouse) (code number 820);

(d) extended eligibility (interdependency) (code number 826);

(e) interdependency (permanent) (code number 814);

(f) skilled occupation (code number 805);

(g) spouse (after entry) (code number 801);

that was not finally determined before 3 July 1995.

“(2) For the purposes of an application to which this regulation applies, the Migration (1989) Regulations have effect:

(a) as if, before the application was made:

(i) provisions to the same effect as Division 1.5 inserted into the Migration Regulations by the July 1995 amendments had been inserted into the Migration (1989) Regulations; and

(ii) criteria to the same effect as the criteria relating to domestic violence inserted into the primary criteria in a Part of Schedule 2 of the Migration Regulations specified in the following table by the July 1995 amendments had been inserted into the regulation or regulations in the Migration (1989) Regulations specified opposite that Part in the table:

	Part	Regulation
	801	135
	814	142D
	820	126
	826	130A
	831	142;

and

(b) in the case of an application made by a person who is a member of the family unit of a person who has applied as a principal person (within the meaning of regulation 108 of the Migration (1989) Regulations) for an extended eligibility (economic) (code number 823) or skilled occupation (code number 805) entry permit—as if criteria to the same effect as the criteria relating to domestic violence inserted into the secondary criteria in Part 805 of Schedule 2 to the Migration Regulations had been inserted into regulation 108 of the Migration (1989) Regulations; and

Certain applications under the Migration (1989) Regulations—criteria related to holding of interdependency (temporary) (code number 305) visa or entry permit

“23D. (1) This regulation applies to an application for an interdependency (permanent) (code number 814) entry permit under the Migration (1989) Regulations, being an application that was not finally determined before 3 July 1995.

“(2) For the purposes of an application to which this regulation applies, the Migration (1989) Regulations have effect:

(a) as if, before the application was made, the following paragraph had been inserted into regulation 142D of the Migration (1989) Regulations:

‘(aa) at the time when the application for the permit is decided, the applicant:

(i) is nominated by a person (in this paragraph called “the nominator”):

(A) who is an Australian citizen or Australian permanent resident; and

(B) with whom the applicant has a relationship of the kind specified in subparagraph 130A (1) (a) (i); and

(ii) holds a valid extended eligibility (interdependency) (code number 826) entry permit, a criterion for the grant of which was that the applicant and the nominator had that relationship; and

(iii) has held an interdependency (temporary) (code number 305) visa or entry permit for the grant of which the applicant was nominated by the nominator; and

(iv) continues to be nominated for the grant of the permit by the nominator; or’; and

(b) as if that paragraph had been in force at all relevant times.

Certain applicants for retirement (code number 410) visas or entry permits under the Migration (1989) Regulations

“23E. (1) This regulation applies to an applicant for a retirement (code number 410) visa or entry permit under the Migration (1989) Regulations if his or her application was not finally determined before 3 July 1995.

“(2) For the purposes of an application by an applicant to whom this regulation applies, the Migration (1989) Regulations have effect:

(a) as if, before the application was made:

(i) provisions to the same effect as the primary criteria in Part 410 of Schedule 2 to the Migration Regulations (as that Part was in force on and after 3 July 1995) had been substituted for regulations 75 and 120 of the Migration (1989) Regulations; and

(ii) provisions to the same effect as the secondary criteria in that Part (as in force on and after that day) had been inserted into regulation 108 of the Migration (1989) Regulations; and

(b) as if those provisions had been in force at all relevant times.

“(3) An applicant to whom this regulation applies is taken to comply with the criteria for the visa or entry permit if:

(a) he or she satisfies the criteria set out in regulations 75 and 120, or regulation 108 (as the case requires), of the Migration (1989) Regulations as in force at the time of the application; or

(b) he or she:

(i) is a rollover applicant (within the meaning of Part 410 of Schedule 2 to the Migration Regulations as in force on and after 3 July 1995) or the spouse of a rollover applicant; and

(ii) satisfies the criteria applicable to a rollover applicant set out in that Part as in force on and after that date.

“(4) A visa granted to an applicant to whom this regulation applies who complies with the criteria referred to in paragraph 3 (a) is to have effect as a temporary visa permitting the holder to travel to, enter and remain in Australia until a date specified by the Minister.

“(5) A visa granted to an applicant to whom this regulation applies who complies with the criteria referred to in paragraph 3 (b) is to have effect as a temporary visa permitting the holder to travel to, enter and remain in Australia for a period of 2 years from the date of grant.

Certain applications under the Migration (1993) Regulations—criteria related to domestic violence

“23F. (1) This regulation applies to an application for an entry permit of any of the following classes under the Migration (1993) Regulations:

(a) Class 801 (spouse (after entry));

(b) Class 805 (skilled occupation);

(d) Class 820 (extended eligibility (spouse));

(e) Class 826 (extended eligibility (interdependency));

that was not finally determined before 3 July 1995.

“(2) For the purposes of an application to which this regulation applies, the Migration (1993) Regulations have effect:

(a) as if, before the application was made:

(i) provisions to the same effect as Division 1.5 inserted into the Migration Regulations by the July 1995 amendments had been inserted into the Migration (1993) Regulations; and

(ii) criteria to the same effect as the criteria relating to domestic violence inserted into the primary criteria in Part 801, 814, 820 or 826 of Schedule 2 to the Migration Regulations by those amendments had been inserted into the Part of Schedule 2 to the Migration (1993) Regulations having the same number as that Part; and

(iii) criteria to the same effect as the criteria relating to domestic violence inserted into the secondary criteria in Part 805 of Schedule 2 to the Migration Regulations by those amendments had been inserted into Part 012 of Schedule 3 to the Migration (1993) Regulations; and

(b) as if those provisions and criteria had been in force at all relevant times.

Certain applications under the Migration (1993) Regulations—criteria related to holding of Class 305 (interdependency (temporary)) visa or entry permit

“23G. (1) This regulation applies to an application for a Class 814 (interdependency (permanent)) entry permit under the Migration (1993) Regulations, being an application that was not finally determined before 3 July 1995.

“(2) For the purposes of an application to which this regulation applies, the Migration (1993) Regulations have effect:

(a) as if, before the application was made:

(i) ‘(2A),’ were inserted after ‘(2),’ in subclause 814.732 (1) of Chapter 1.2 of Schedule 2 to the Migration (1993) Regulations; and

(ii) the following subclause were inserted into clause 814.732 of that Chapter:

	‘(2A) An applicant meets the requirements of this subclause if: (a) the applicant is the holder of a Class 826 (extended eligibility (interdependency)) entry permit; and
	(b) the applicant has held: (i) a Class 305 (interdependency (temporary)) visa or entry permit for the grant of which the applicant was nominated by the nominator; or
	(ii) an interdependency (temporary) (code number 305) visa or entry permit granted under the Migration (1989) Regulations; and
	(c) the applicant continues to be nominated for the grant of the Class 814 entry permit by the nominator; and
	(d) the applicant has a relationship with the nominator that is acknowledged by both and involves: (i) residing together; and
	(ii) being closely interdependent; and
	(iii) having a continuing commitment to mutual emotional and financial support; and
	(e) the relationship between the applicant and the nominator is both genuine and continuing.’;

and

(b) as if those criteria had been in force at all relevant times.

Certain applications under the Migration (1993) Regulations—Class 410 (retirement) visa or entry permit

“23H. (1) This regulation applies to an applicant for a Class 410 (retirement) visa or entry permit under the Migration (1993) Regulations whose application was not finally determined before 3 July 1995.

“(2) For the purposes of an application by an applicant to whom this regulation applies, the Migration (1993) Regulations have effect:

(a) as if, before the application was made:

(i) criteria to the same effect as the primary criteria in Part 410 (as that Part was in force on and after 3 July 1995) of Schedule 2 to the Migration Regulations had been substituted for Part 410 of Chapter 2.1 of Schedule 2 to the Migration (1993) Regulations; and

(ii) criteria to the same effect as the secondary criteria in Part 410 (as that Part was in force on and after 3 July 1995) of Schedule 2 to the Migration Regulations had been inserted into Part 021 of Schedule 3 to the Migration (1993) Regulations; and

(b) as if those criteria had been in force at all relevant times.

“(3) An applicant to whom this regulation applies is taken to comply with the criteria for the visa or entry permit if:

(a) he or she satisfies the criteria set out in Part 410 of Chapter 2.1 of Schedule 2, or Part 021 of Schedule 3, to the Migration (1993) Regulations as in force at the time of the application; or

(b) he or she:

(i) is a rollover applicant (within the meaning of Part 410 of Schedule 2 to the Migration Regulations as in force on and after 3 July 1995) or the spouse of a rollover applicant; and

(ii) satisfies the criteria applicable to a rollover applicant set out in that Part as in force on and after that date.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 15 June 1995.

2. Statutory Rules 1994 No. 261 as amended by 1994 Nos. 281 and 377; 1995 No. 40.