Migration Amendment Regulation 2012 (No. 5)1
Select Legislative Instrument 2012 No. 230
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Migration Act 1958.
Dated 27 September 2012
QUENTIN BRYCE
Governor-General
 
By Her Excellency’s Command
CHRIS BOWEN
Minister for Immigration and Citizenship
1              Name of regulation
                This regulation is the Migration Amendment Regulation 2012 (No. 5).
2              Commencement
                This regulation commences on the day after it is registered.
3              Amendment of Migration Regulations 1994
                Schedule 1 amends the Migration Regulations 1994.
Schedule 1        Amendments
(section 3)
 
[1]           Regulation 2.07AM
substitute
2.07AM  Applications for Refugee and Humanitarian (Class XB) visas
         (1)   For subsection 46 (2) of the Act, a Refugee and Humanitarian (Class XB) visa is a prescribed class of visa.
         (2)   An application for a Refugee and Humanitarian (XB) visa is taken to have been validly made by a person only if the requirements in subregulation (3) or item 1402 of Schedule 1 have been met.
         (3)   The requirements are that:
                (a)    the person is an irregular maritime arrival; and
               (b)    the Minister has invited the person to make an application for a Refugee and Humanitarian (Class XB) visa; and
                (c)    the person indicates to an authorised officer that he or she accepts the invitation; and
               (d)    the authorised officer endorses, in writing, the person’s acceptance of the invitation.
         (4)   An application made under paragraph 1402 (3) (a) of Schedule 1 is taken to have been made outside Australia.
         (5)   In this regulation:
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[2]           Schedule 1, item 1402, heading
substitute
1402.      Refugee and Humanitarian (Class XB)
Note   Subregulation 2.07AM (3) sets out requirements for the making of applications by persons who are irregular maritime arrivals.
[3]           Schedule 1, after paragraph 1402 (3) (b)
insert
              (ba)    Applicant must not be an irregular maritime arrival.
[4]           Schedule 1, after subitem 1402 (4)
insert
         (5)   In this item:
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[5]           Schedule 2, clause 200.111
insert
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[6]           Schedule 2, paragraph 200.211 (2) (d)
omit
Immigration.
insert
Immigration; and
[7]           Schedule 2, after paragraph 200.211 (2) (d)
insert
                (e)    the proposer is not an irregular maritime arrival.
[8]           Schedule 2, clause 200.222
substitute
200.222      The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
                   (a)     in the case of an applicant who met the requirements of subclause 200.211 (2) at the time of application—the extent of the applicant’s connection with Australia; or
                  (b)     in any other case—the following:
                              (i)   the degree of persecution to which the applicant is subject in the applicant’s home country; and
                             (ii)   the extent of the applicant’s connection with Australia; and
                            (iii)   whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
                            (iv)   the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
[9]           Schedule 2, clause 202.111
insert
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[10]         Schedule 2, paragraph 202.211 (2) (d)
omit
Immigration.
insert
Immigration; and
[11]         Schedule 2, after paragraph 202.211 (2) (d)
insert
                (e)    the proposer is not an irregular maritime arrival.
[12]         Schedule 2, clause 202.222
substitute
202.222      (1)   If the applicant met the requirements of subclause 202.211 (2) at the time of application and the applicant’s proposer:
                   (a)     is, or has been, the holder of a Subclass 202 visa; or
                  (b)     was less than 18 years old at the time of application and is, or has been, the holder of:
                              (i)   a Subclass 866 (Protection) visa; or
                             (ii)   a Resolution of Status (Class CD) visa;
                   the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa having regard to the extent of the applicant’s connection with Australia.
                   (2)   If subclause (1) does not apply, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
                   (a)     the degree of persecution to which the applicant is subject in the applicant’s home country; and
                  (b)     the extent of the applicant’s connection with Australia; and
                   (c)     whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
                  (d)     the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
[13]         Schedule 2, paragraph 202.225 (a)
substitute
                (a)    a person who:
                          (i)    is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
                         (ii)    is not an irregular maritime arrival; or
[14]         Schedule 2, clause 203.111
insert
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[15]         Schedule 2, paragraph 203.211 (2) (d)
omit
Immigration.
insert
Immigration; and
[16]         Schedule 2, after paragraph 203.211 (2) (d)
insert
                (e)    the proposer is not an irregular maritime arrival.
[17]         Schedule 2, clause 203.222
substitute
203.222      The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
                   (a)     in the case of an applicant who met the requirements of subclause 203.211 (2) at the time of application—the extent of the applicant’s connection with Australia; or
                  (b)     in any other case—the following:
                              (i)   the degree of persecution to which the applicant is subject in the applicant’s home country; and
                             (ii)   the extent of the applicant’s connection with Australia; and
                            (iii)   whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
                            (iv)   the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
[18]         Schedule 2, clause 204.111
insert
irregular maritime arrival means a person who, on or after 13 August 2012:
                (a)    became an offshore entry person; or
               (b)    was taken to a place outside Australia under paragraph 245F (9) (b) of the Act.
[19]         Schedule 2, paragraph 204.211 (2) (d)
omit
Immigration.
insert
Immigration; and
[20]         Schedule 2, after paragraph 204.211 (2) (d)
insert
                (e)    the proposer is not an irregular maritime arrival.
[21]         Schedule 2, clause 204.224
substitute
204.224      The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
                   (a)     in the case of an applicant who met the requirements of subclause 204.211 (2) at the time of application—the extent of the applicant’s connection with Australia; or
                  (b)     in any other case—the following:
                              (i)   the degree of persecution to which the applicant is subject in the applicant’s home country; and
                             (ii)   the extent of the applicant’s connection with Australia; and
                            (iii)   whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
                            (iv)   the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
[22]         Schedule 13, after Part 4
insert
Part 5                 Amendments made by Migration Amendment Regulation 2012 (No. 5)
  
501         Operation of Schedule 1
         (1)   The amendments of these Regulations made by items [1] to [7], [10], [11], [14] to [16] and [18] to [20] of Schedule 1 to the Migration Amendment Regulation 2012 (No. 5) apply in relation to an application for a visa made on or after the day that regulation commences.
         (2)   The amendments of these Regulations made by items [8], [9], [12], [13], [17] and [21] of Schedule 1 to the Migration Amendment Regulation 2012 (No. 5) apply in relation to an application for a visa:
                (a)    made, but not finally determined, before the day that regulation commences; and
               (b)    made on or after the day that regulation commences.
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.