Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 13) 2001 NO. 344

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 344

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

Migration Act 1958

Migration Amendment Regulations 2001 (No. 13)

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 are required or permitted to be prescribed by the Act, 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 powers under the Act:

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

-       subsection 31(4) of the Act provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

-       subsection 45B(1) of the Act provides that the amount of the visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;

-       subsection 46(1) of the Act provides that an application is valid if, inter alia, it satisfies the criteria and requirements prescribed under that section;

-       subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

-       subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe:

•       the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

•       how an application for a visa of a specified class must be made; and

•       where an application for a visa of a specified class must be made; and

•       where an applicant must be when an application for a visa of a specified class is made; and

-       section 495 of the Act provides that the Minister may approve a form for the purposes of a provision of the Act in which the expression "approved form" is used.

The purpose of the Regulations is to enable certain Student visa applications to be made over the Internet where the applicant is already in Australia.

As part of the changes made to the student visa scheme on 1 July 2001, five assessment levels were created. An assessment level specifies the evidentiary requirements that a student visa applicant must fulfil. Assessment level 1 provides for low risk applicants, while assessment level 5 provides for high risk applicants. A student visa applicant is subject to a particular assessment level on the basis of his or her country of citizenship/residence and the sector of education in which he or she will be studying.

The Regulations provide for the following kinds of applications:

•       an on-shore Internet application for an initial student visa by an applicant who is subject to assessment level 1 or 2 (that is, low risk students), and by members of their family unit;

•       an on-shore Internet application for a further student visa by an applicant who is subject to assessment level, and by members of their family unit;

•       an on-shore Internet application for an initial student visa by a member of the family unit of the student visa holder, who is seeking to remain with the student in Australia, regardless of the assessment level of the student; and

•       an on-shore Internet application for a further student visa with permission to work by a student subject to any assessment level, and by members of their family unit.

In addition, the Regulations make minor amendments to visa Subclass 686 (Tourist (Long Stay)), and to visa Subclass 457 (Business (Long Stay)). These amendments are technical, remedying minor defects in amendments made to these subclasses on 28 June 2001.

Details of the Regulations are set out the Attachment.

The Regulations commence on 28 January 2002.

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 13).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 28 January 2002.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994.

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by Schedule 1 (except those made by item [2] of that Schedule) apply in relation to an application for a visa made on or after 28 January 2002.

Subregulation 4(2) provides that to avoid doubt, despite item [2] of Schedule 1, subparagraphs 2.10(1)(b)(iv) to (vii) of the Migration Regulations 1994 continue to apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 28 January 2002.

Subparagraphs 2.10(1)(b)(iv) to (vii) enable educational institutions approved in writing by the Minister to receive applications for certain student visas, and are repealed by these Regulations.

Schedule 1 - Amendments

Item [1] - Regulation 1.03, definition of student visa

This item makes a technical amendment to the definition of a student visa in regulation 1.03 by claryfying that a student visa means a Student (Temporary)(Class TU) visa whenever granted.

Item [2] - Subregulation 2.07AF(3)

This item amends subregulation 2.07AF(3) by inserting a reference to form 157A (Internet) after the reference to form 157A.

The amendment is consequential to other amendments made by these Regulations enabling certain applicants to apply for a student visa over the Internet using form 157A (Internet).

Item [3] - Subparagraphs 2.10(1)(b)(iv) to (vii)

This item omits subparagraphs 2.10(1)(b)(iv) to (vii) requiring certain on-shore applications for certain student visas to be made at any office of Immigration, or at the educational institution where the applicant is enrolled (if the institution is approved in writing by the Minister for the purpose of receiving applications of that kind).

The repeal of these subparagraphs reflects the withdrawal of arrangements under which an applicant for a student visa could apply for a visa at an approved educational institution.

Item [4] - Schedule 1, paragraph 1222(1)(b)

This item makes a technical amendment to paragraph 1222(1)(b) by omitting the first mention of student visa and inserting a specific reference to a Subclass 560, 562 or 563 visa.

The amendment is consequential to the amendment of the definition of a student visa in regulation 1.03 made by these Regulations, and is intended to restrict the applicability of paragraph 1222(1)(b) to the holder of a Subclass 560, 562, or 563 visa subject to condition 8101.

Item [5] - Schedule 1, after paragraph 1222(1)(b)

This item inserts new paragraph 1222(1)(ba) into subitem 1222(1) of the Regulations.

Paragraph 1222(1)(ba) provides that in the case of an application made in Australia by an applicant who holds a Subclass 570, 571, 572, 573, 574, 575 or 576 visa that is subject to condition 8101, and who seeks a visa of any of those subclasses that is not subject to condition 8101, the application must be made on form 157P or 157P (Internet).

The purpose of the amendment is to enable the holder of a student visa (except a Subclass 560, 562, or 563 visa) subject to condition 8101 (holder must not engage in work) who applies for a further student visa (but not a Subclass 560, 562 or 563 visa) not subject to condition 8101, to apply using form 157P, or to apply over the Internet using 157P (Internet).

Item [6] - Schedule 1, paragraph 1222(1)(d)

This item substitutes paragraph 1222(1)(d) with new paragraph 1222(1)(d) setting out the approved form that must be used to make an application for a student visa if paragraph 1222(1)(a), (b), (ba), or (c) does not otherwise apply.

Subparagraph 1222(1)(d)(i) provides that if the application is made outside Australia form 157A must be used, and if the application is made in Australia - form 157A or 157A (Internet) must be used.

Item [7] - Schedule 1, after paragraph 1222(3)(c)

Schedule 1 of the Regulations sets out those matters that an applicant for a class of visa must establish to make a valid application for a visa of that class.

Item [7] of these Regulations inserts new paragraphs 1222(3)(ca), (cb), (cc), and (cd) into subitem 1222(3) of the Regulations, setting out the matters that must be established by an applicant applying for a student visa over the Internet using forms 157A (Internet) and 157P (Internet).

Paragraph 1222(3)(ca)

Paragraph 1222(3)(ca) sets out those matters that an applicant who has made his or her application for a student visa on form 157A (Internet), and who is seeking to satisfy the primary criteria for the grant of a student visa, must establish in order to make a valid application for a Student (Temporary)(Class TU) visa.

Subparagraph 1222(3)(ca)(i) provides that such an applicant must be in Australia but not in immigration clearance.

Subparagraph 1222(3)(ca)(ii) provides that such an applicant must be 18 years of age or older when the application is made.

Subparagraph 1222(3)(ca)(iii) provides that such an applicant must be either the holder of a student visa, or be subject to assessment levels 1 or 2 in relation to the student visa subclass against which he or she is seeking to be assessed and be the holder of a relevant visa.

Subparagraph 1222(3)(ca)(iv) provides that such an applicant must be either

•       enrolled in a registered full-time course of study or training of a kind that has been gazetted under regulation 1.40A; and the provider of which is not a suspended education provider; and that will commence not more than 42 days after the date of the application; or

•       if the applicant is an AusAID student who meets the requirement in subparagraph 1.04A(3)(b)(ii), a Defence student who meets the requirement in subparagraph 1.04B(b)(ii), or an exchange student - be enrolled or intending to enrol in a full-time course of study or training the provider of which is not a suspended education provider; and that will commence not more than 42 after the date of the application.

Paragraph 1222(3)(eb)

Paragraph 1222(3)(cb) sets out those matters that an applicant who has made his or her application for a student visa on form 157P (Internet), and who is seeking to satisfy the primary criteria for the grant of a student visa, and who seeks a visa not subject to condition 8101, must establish in order to make a valid application for a Student (Temporary)(Class TU) visa.

Subparagraph 1222(3)(eb)(i) provides that such an applicant must be in Australia but not in immigration clearance.

Subparagraph 1222(3)(cb)(ii) provides that such an applicant must be the holder of a Subclass 570, 571, 572, 573, 574, 575 or 576 visa that is subject to condition 8101.

Subparagraph 1222(3)(cb)(iii) provides that such an applicant must be enrolled in a registered fulltime course of study or training of a kind that has been gazetted under regulation 1.40A.

Subparagraph 1222(3)(cb)(iv) provides that such an applicant must apply on or after the date the course commences.

Paragraph 1222(3)(cc)

Paragraph 1222(3)(ce) sets out those matters that an applicant who has made his or her application for a student visa on form 157A (Internet), and who is seeking to satisfy the secondary criteria for the grant of a student visa, and the application is not combined with an application by a person seeking to meet the primary criteria, must establish in order to make a valid application for a Student (Temporary)(Class TU) visa.

Paragraph 1222(3)(cc) provides that such an applicant must be a person who:

• is in Australia but not in immigration clearance; and

• is 18 years of age or older when the application is made; and

• is the holder of a relevant visa; and

• claims to be a member of the family unit of the holder of a student visa granted on the basis of the holder satisfying the primary criteria where the holder is

- enrolled in a registered full-time course of study or training, or

- an AusAID student who meets the requirement in subparagraph 1.04A(3)(b)(ii), a Defence student who meets the requirement in subparagraph 1.04B(b)(ii), or an exchange student; or

• claims to be a member of the family unit of a person mentioned above.

Paragraph 1222(3)(cd)

Paragraph 1222(3)(cd) sets out those matters that an applicant who has made his or her application for a student visa on form 157P (Internet), and who is seeking to satisfy the secondary criteria for the grant of a student visa, and who seeks a visa not subject to condition 8101, and the application is not combined with an application by a person seeking to meet the primary criteria, must establish in order to make a valid application for a Student (Temporary)(Class TU) visa.

Paragraph 1222(3)(cd) provides that such an applicant must be a person who:

•       is in Australia but not in immigration clearance; and

•       is the holder of a Subclass 570, 571, 572, 573, 574, 575, or 576 visa that is subject to condition 8101; and

•       claims to be a member of the family unit of the holder of a Subclass 570, 571, 572, 573, 574, 575, or 576 visa granted on the basis of the holder satisfying the primary criteria where

- the holder is enrolled in a registered full-time course of study or training, and

- the application is made on or after the date the course commences; or

•       claims to be a member of the family unit of a person mentioned above.

Item [8] - Schedule 1, after subitem 1222(4)

This item inserts new subitem 1222(5) into item 1222 defining the term 'relevant visa' used in subsubparagraphs 1222(3)(ca)(iii)(B) and 1222(3)(cc)(i)(C).

A relevant visa means a visa of one of the classes or subclasses of visa listed in subitem 1222(5).

Item [9] - Schedule 1, subitem 1301(1)

This item amends subitem 1301(1) by inserting a reference to form 157A (Internet) after the reference to form 157A.

The amendment is consequential to other amendments made by these Regulations enabling certain applicants to apply for a student visa over the Internet using form 157A (Internet).

Item [10] - Schedule 2, subclause 457.611 (1)

This item amends subclause 457.611 (1) by inserting a reference to subclause 457.223(7A) after the existing reference to subclause 457.223(7).

The amendment ensures that a visa granted pursuant to an applicant meeting the requirements of subclause 457.223(7A) will not be subject to condition 8107. The amendment is intended to bring consistency to the treatment of subclause 457.223(7) and subclause 45 7.223 (7A) in subclause 457.611 (1).

Item [11] - Schedule 2, subclause 686.511(2)

This item amends subclause 686.511(2) by clarifying that an Internet application referred to in subclause 686.511(2) must be an Internet application that met the criteria in clause 686.212.

Clause 686.212 sets out the criteria against which a valid Internet application for a Long Stay (Visitor)(Class TN) visa is assessed. Clause 686.213 sets out the criteria against which a valid Internet application for a Long Stay (Visitor)(Class TN) visa is assessed, if the applicant does not satisfy the criteria in clause 686.212.

The amendment is intended to clarify that subclause 686.511(2) does not apply to a visa granted pursuant to an Internet application that met the automatic grant criteria of clause 686.212.

Subclause 686.511(2) is intended to apply to a visa granted pursuant to an Internet application that did not meet the criteria of subclause 686.212 but that met the criteria of clause 686.213.

Item [12] - Schedule 2, subclause 686.511(4)

This item amends subclause 686.511(4) by clarifying that subclause 686.511(4) applies if a visa is granted on the basis of an Internet application that met the criteria in clause 686.212.

The intention of the amendment is to clarify that subclause 686.511(4) applies to a visa granted on the basis of an Internet application automatically decided under clause 686.212.

Item [13] - Further amendments - form 157A (Internet)

This item makes amendments to provisions that refer to form 157A. The amendments are consequential to other amendments made by these Regulations enabling certain applicants to apply for a student visa over the Internet using form 157A (Internet).

The provisions referred to in Item [13] are amended by inserting a reference to form 157A (Internet) after the reference to form 157A.

Item [14] - Further amendments - form 157P (Internet)

This item makes amendments to provisions referring to form 157P. The amendments are consequential to other amendments made by these Regulations enabling certain applicants to apply for a student visa over the Internet using form 157P (Internet).

The provisions referred to in Item [14] are amended by inserting a reference to form 157P (Internet) after the reference to form 157P.


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