Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 11 November 2021

David Hurley

Governor‑General

By His Excellency’s Command

Alex Hawke

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Contents

1 Name

2 Commencement

3 Authority

4 Schedules

Schedule 1—Amendments

Migration Regulations 1994

1  Name

  This instrument is the Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021.

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under the Migration Act 1958.

4  Schedules

  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Migration Regulations 1994

1  After paragraph 2.21B(1)(c)

Insert:

 or (d) a valid application for a Refugee and Humanitarian (Class XB) visa;

2  At the end of paragraph 1402(3)(b) of Schedule 1

Add “unless the applicant is covered by subitem (3B)”.

3  Paragraph 1402(3)(c) of Schedule 1

Repeal the paragraph, substitute:

 (c) Application by a person (the family member) claiming to be a member of the family unit of a person (the first applicant) who is an applicant for a Refugee and Humanitarian (Class XB) visa:

 (i) if subparagraph (ii) does not apply—may be made at the same time and place as, and combined with, the application by the first applicant; or

 (ii) if the first applicant is covered by subitem (3B) and the family member is not covered by subitem (3B)—may not be made at the same time and place as, and combined with, the application by the first applicant.

4  After subitem 1402(3A) of Schedule 1

Insert:

 (3B) An applicant is covered by this subitem if, at the time the application is made, the applicant:

 (a) holds a Subclass 449 (Humanitarian Stay (Temporary)) visa; and

 (b) is in a class of persons specified by the Minister in a legislative instrument made under subitem (3C).

 (3C) The Minister may, by legislative instrument, specify a class of persons for the purposes of paragraph (3B)(b) if the Minister is satisfied that doing so is appropriate to assist persons residing temporarily in Australia as a result of Australia’s response to the humanitarian crisis in Afghanistan in 2021.

5  At the end of subclause 201.211(1) of Schedule 2

Add:

 ; or (c) is covered by subitem 1402(3B) of Schedule 1.

6  At the end of clause 201.229 of Schedule 2

Add:

 (3) Subclause (2) does not apply if the applicant is covered by subitem 1402(3B) of Schedule 1.

7  Paragraph 201.311(a) of Schedule 2

Omit “or (aa)”, substitute “, (aa) or (c)”.

8  Paragraph 201.321(a) of Schedule 2

Omit “or (aa)”, substitute “, (aa) or (c)”.

9  Clause 201.411 of Schedule 2

Omit “The applicant”, substitute “(1) Unless subclause (2) applies, the applicant”.

10  At the end of clause 201.411 of Schedule 2

Add:

 (2) If the applicant is covered by subitem 1402(3B) of Schedule 1, the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.

11  Clause 201.611 of Schedule 2

Omit “Entry”, substitute “If the applicant is outside Australia when the visa is granted, entry”.

12  In the appropriate position in Schedule 13

Insert:

Part 102—Amendments made by the Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021

10201  Operation of Schedule 1

  The amendments of these Regulations made by Schedule 1 to the Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021 apply in relation to an application for a visa made after the commencement of that Schedule.

10202  Applications for Refugee and Humanitarian (Class XB) visas made before commencement

 (1) This clause applies to an application for a Refugee and Humanitarian (Class XB) visa made before the commencement of Schedule 1 to the Migration Amendment (Humanitarian Response to Events in Afghanistan) Regulations 2021 if:

 (a) the applicant enters Australia before a decision is made to grant or refuse to grant the visa; and

 (b) at any time after the entry to Australia, the applicant holds a Subclass 449 (Humanitarian Stay (Temporary)) visa.

 (2) Clause 201.221 of Schedule 2 does not apply in relation to the application.

 (3) Despite clauses 200.411, 201.411, 202.411, 203.411 and 204.411 of Schedule 2, the applicant may be in or outside Australia, but not in immigration clearance, when the Refugee and Humanitarian (Class XB) visa is granted.