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Amendments to status of non-citizen children born in Australia, the taking of securities and bridging visas

15 March 2009 Legislation Change

Client summary

The Migration Legislation Amendment Act (No. 1) 2008 (the ‘Amending Act’) received the Royal Assent on 15 September 2008. Parts 1, 3 and 4 of Schedule 3 to the Amending Act will commence on 15 March 2009. Part 2 of Schedule 3, which deals with criminal code harmonisation amendments, commenced on 15 September 2008. Other parts of the Amending Act have either already commenced or will commence on 15 March 2009.

Parts 1, 3 and 4 of Schedule 3 amend the Migration Act 1958 (the ‘Act’) to:

  • give greater certainty to the immigration status and immigration clearance of non-citizen children born in Australia;
  • clarify that an authorised officer may require and take a security in relation to a visa application before the visa is granted; and
  • make minor amendments to clarify the operation of certain provisions relating to bridging visas.

Affected legislation

The following provisions of the Act are amended:

Immigration clearance status of non-citizen children born in Australia

  • New paragraph 172(1)(ba) is added
  • New paragraph 172(1)(d) is added
  • Subsection 173(1)
  • New subsection 173(2) is added

The taking of securities

  • Subsection 269(1)
  • New subsection 269(1A) is added

Minor amendments relating to bridging visas

  • Subsection 48(2)
  • New subsection 48(3) is added
  • New subsection 82(7A) is added

Additional information:

Immigration clearance status of non-citizen children born in Australia
The amendments provide greater certainty as to when non-citizen children born in Australia are immigration cleared.  In effect, the amendments provide that a non-citizen child born in Australia is ‘immigration cleared’ if at the time of birth, a parent of the child was immigration cleared on his or her last entry into Australia.  Complementary amendments are also made to clarify that any visas taken to have been granted to non-citizen children at the time of their birth, do not cease to be in effect because these children do not technically ‘enter Australia’ through a port or a pre-cleared flight. 

These amendments apply to a non-citizen child born in Australia on or after 1 September 1994.

The taking of securities
Securities are sometimes taken to promote compliance with the conditions that will be attached to the visa.  The amendments clearly authorise an officer to exercise the power to require and take a security before a visa is granted.  Where the visa is subsequently not granted, the security will be returned.

These amendments apply in relation to all visa applications made on or after 15 March 2009.

Minor amendments relating to bridging visas
The amendments ensure that the statutory restrictions on certain persons making further visa applications in Australia (for example, in the migration zone) cannot be circumvented by a person leaving Australian and re-entering on a bridging visa.  In effect, the amendments provide that a non-citizen (who while holding a bridging visa, leaves and re-enters Australia) is taken to have been continuously in Australia despite that travel.  The amendments only apply to restrict visa applications made while non-citizens are in Australia.  They will not affect applications made while non-citizens are outside Australia.

These amendments apply to all visa applications made on or after 15 March 2009, regardless of:

  • whether the relevant bridging visa was granted before or after 15 March 2009; and
  • whether the relevant travel took place before or after 15 March 2009.

The amendments also clarify that a bridging visa ceases to be in effect the moment a certain ceasing event happens, rather than at the end of the day on which the event occurs.  For example, where the event is the cancellation of the substantive visa, the bridging visa would cease to be in effect the moment (rather than at the end of the day) that the non-citizen’s substantive visa is cancelled.

These amendments apply in relation to all bridging visas that are held at any time after
15 March 2009, regardless of whether the bridging visas were granted before or after that date.

Application of the new provisions:

See additional information above.

Forms: Changes will be made to Forms 1005, 1006, 1024i and 1099.

Instructions: Changes will be made to the following Procedure Advice Manuals (PAM):

  • PAM3: Sch2 Bridging visas – Visa applications and related procedures, Section 33 Cancellation of Bridging visa
  • PAM3:Sch2 Bridging A – Section 8, Visa cancellation
  • PAM3:Sch2 Bridging B – Section 4, Applicable criteria 
  • PAM3:Sch2 Bridging C – Section 5, The visa period