MIGRATION AMENDMENT REGULATIONS 2001 (NO. 11) 2001 NO. 285

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 11) 2001 NO. 285

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 285

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

Migration Act 1958

Migration Amendment Regulations 2001 (No. 11)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

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

• subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class; and

• subsection 46(4) of the Act provides that the regulations may prescribe where an application for a visa of a specified class must be made.

The purpose of the Regulations is to effect changes to the Migration Regulations 1994 (the Regulations) to ease certain evidentiary requirements for the grant of a student visa and to provide that certain student visa applications must be sent to an address specified by the Minister.

In particular, the Regulations:

• require an application made on form 157A by an applicant who is outside Australia, and who is a citizen of a foreign country specified in a Gazette Notice, to be sent to an address specified by the Minister;

• provide that an application as described above is taken to have been made outside Australia;

• ease the evidentiary requirements in relation to financial capacity for the grant of various subclasses of student visas, where an applicant is subject to assessment level 3. Student visas are the only visas in relation to which certain extra evidentiary requirements must be met before a visa can be granted. The evidentiary requirements are eased by reducing the time period for which funding for an applicant must be held, and by expanding the sources from which an applicant can obtain financial support; and

• set out the circumstances in which an applicant for a Subclass 574 (Masters and Doctorate Sector) visa who would otherwise have to provide evidence of English language proficiency, does not have to provide evidence of English language proficiency.

Details of the Regulations are set out in the Attachment.

Regulations 1 to 4 and Schedule 1 to the Regulations commence on gazettal. Schedule 2 to the Regulations commences on 1 November 2001.

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 11).

Regulation 2 - Commencement

Paragraph 2(a) provides that regulations 1 to 4 and Schedule 1 of these Regulations commence on gazettal.

Paragraph 2(b) provides that Schedule 2 of these Regulations commences on 1 November 2001.

Regulation 3 - Amendment of the Migration Regulations 1994

This regulation provides that Schedules 1 and 2 to these Regulations amend the Migration Regulations 1994.

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by Schedule 1 to these Regulations apply in relation to an application for a visa made on or after the date of commencement of Schedule 1.

Subregulation 4(2) provides that the amendments made by Schedule 2 to these Regulations apply in relation to an application for a visa made on or after 1 November 2001.

Schedule 1 - Amendments commencing on gazettal

Item [1] - Schedule 5A, subclause 5A604(1)

Item [2] - Schedule 5A, subclause 5A607(1)

These items substitute subclauses 5A604(1) and 5A607(1). The new subclauses set out the circumstances in which an applicant for a Subclass 574 (Masters and Doctorate Sector) visa who is subject to either assessment level 3 or 4, is not required to provide evidence of English language proficiency.

New subclauses 5A604(1) and 5A607(1) set out that the applicant is not required to provide evidence of English language proficiency if the application is made outside Australia and the applicant:

- provides evidence that he or she has successfully completed a course specified in a Gazette Notice for the purpose of paragraph 5A607(1)(a) or 5A607(1)(b) respectively; or

- provides a certificate of enrolment in a course that has been gazetted for subregulation 1.44(2), and will not undertake any other course before commencing the gazetted course.

The purpose of new paragraphs 5A604(1)(a) and 5A607(1)(a) is to exempt certain overseas student visa applicants from providing evidence of English language proficiency where they have completed a course specified in a Gazette Notice.

The courses to be specified in the Gazette Notice are courses conducted outside Australia and conducted completely in English, for example a Bachelor degree course conducted at a university in the United Kingdom.

Paragraphs 5A604(1)(a) and 5A607(1)(a) therefore exempt an applicant who has completed such a course from having to provide evidence of English language proficiency.

New paragraphs 5A604(1)(b) and 5A607(1)(b) replace paragraphs 5A604(1)(b) and (c) and paragraphs 5A607(1)(b) and (c) although the substance of these new paragraphs is exactly the same as those that they replace.

These subparagraphs exempt certain overseas students from having to provide evidence of English language proficiency where they intend to study a course in Australia in which tuition is in a language other than English.

Schedule 2 - Amendments commencing on 1 November 2001

Item [1]- After subregulation 2.07AF(5), including the note

This item inserts a new provision setting out that an application for a student visa made pursuant to new paragraph 1222(3)(aa) inserted by these Regulations is taken to have been made outside Australia.

New paragraph 1222(3)(aa) requires inter alia, an application made on form 157A by an applicant who is outside Australia, to be made by posting or delivering the application to an address specified by the Minister. This provision will allow the Minister to specify an address that may be either inside or outside Australia.

The reason for new subregulation 2.07AF(6) is to ensure that an application made to an address inside Australia pursuant to new paragraph 1222(3)(aa), is treated as an application made outside Australia.

Under certain provisions of the Act and Regulations an application made inside Australia is treated differently from an application made outside Australia. The amendment ensures that an applicant who is outside Australia will only have to meet the criteria required for an application made outside Australia, even where the office specified by the Minister is inside Australia.

This ensures that the applicant is not required to meet criteria that only an applicant who is in Australia could practically meet.

Item [2] - Schedule 1, paragraph 1222(3)(a)

This item makes a technical amendment to paragraph 1222(3)(a) ensuring that paragraph 1222(3)(a) is read subject to new paragraph 1222(3)(aa) inserted by these Regulations.

Item [3] - Schedule 1, after paragraph 1222(3)(a)

This item inserts new paragraph 1223(3)(aa) requiring that despite regulation 2.10 (dealing with where an application must be made), an application for a student visa made on form 157A by an applicant who

- is outside Australia; and

- is a citizen of a foreign country specified by Gazette Notice; and

- is usually resident in that foreign country; and

- if the Gazette Notice specifies a part of the foreign country for usual residence, is usually resident in that part

must be made by posting the application, or having the application delivered by a courier service, to the address specified by the Minister.

The purpose of the amendment is to allow the Minister to specify an address inside or outside Australia to which an application made on form 157A for a student visa by a person described above must be sent.

This facility will enable visa applications to be processed more efficiently at the location specified by the Minister and ease the processing burden at certain offices overseas.

Item [4] - Schedule 5A, clause 5A101, definition of financial institution, paragraph (b)

This item omits the word "foreign" from paragraph (b) of the definition of financial institution in clause 5A101.

The effect of the amendment is to include Australian financial institutions within the definition of financial institution for the purposes of Schedule 5A of the Regulations.

The purpose of the amendment is to ensure that a loan from an Australian financial institution is a fund from an acceptable source for the purposes of the Regulations.

Item [5] - Schedule 5A, subclause 5A208(2), definition of funds from an acceptable source

This item substitutes the definition of funds from an acceptable source in subclause 5A208(2).

The new definition extends paragraph (a) of the current definition by clarifying that funds from an acceptable source includes a money deposit that an acceptable individual has held for at least 3 consecutive months before the date of the application.

Paragraph (b) of the new definition of funds from an acceptable source includes a loan from a financial institution.

Paragraph (d) of the definition of funds from an acceptable source is expanded in respect of who may provide financial support (such as a scholarship) to an applicant, to include a corporation that conducts commercial activities outside the country in which it is based, and employs the applicant in a role in relation to which the applicant's principal course is of direct relevance.

The reason for the amendment is to achieve greater consistency in the Regulations by aligning the financial criteria for assessment level 3 in Parts 2, 3, 4 and 7 of Schedule 5A with existing financial criteria for assessment level 3 in Part 5 of Schedule 5A.

Item [6] - Schedule 5A, subparagraph 5A308(2)(d)(iv)

This item substitutes subparagraph 5A308(2)(d)(iv) with new subparagraphs 5A308(2)(d)(iv) and (v).

The definition of who may provide financial support is expanded to include financial support from a corporation that conducts commercial activities outside the country in which it is based, and employs the applicant in a role in relation to which the applicant's principal course is of direct relevance.

The reason for the amendment is to achieve greater consistency in the Regulations by aligning the financial criteria of assessment level 3 in Parts 2, 3, 4 and 7 of Schedule 5A with the financial criteria for assessment level 3 in Part 5 of Schedule 5A.

Item [7] - Schedule 5A, subclause 5A408(2), definition of funds from an acceptable source

This item substitutes the definition of funds from an acceptable source in subclause 5A408(2).

The new definition reduces the period in paragraph (a) of the current definition for which an acceptable individual must hold a money deposit from at least 6 consecutive months before the date of the application, to at least 3 consecutive months before the date of the application.

Paragraph (b) of the new definition of funds from an acceptable source includes a loan from a financial institution, and paragraph (c) of the new definition includes a loan from the government of the applicant's home country.

Item [8] - Schedule 5A, subclause 5A708(2), definition of funds from an acceptable source

This item substitutes the definition of funds from an acceptable source in subclause 5A708(2).