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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 7) 2001 NO. 239
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 239
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 2001 (No. 7)
Subsection 504(1) of the Migration Act 1958 (the Act) provides that the GovernorGeneral 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.
Details of additional regulation-making powers under the Act are in Attachment A.
The purpose of the Regulations is to amend provisions relating to the application for and grant of certain visas, the refund of specified fees, and the operation of certain aspects of the merit review process for visa applicants.
The Regulations effect changes to the Migration Regulations 1994 (the Regulations) to:
• enhance the integrity of the Subclass 442 (Occupational Trainee) visa by requiring that the Minister is satisfied that the occupational training that the applicant will undertake as the holder of a Subclass 442 visa will be workplace-based rather than classroom-based, This will ensure that a visa applicant will not be granted a Subclass 442 (Occupational Trainee) visa when the more appropriate visa for such an applicant is a student visa;
• enable a Subclass 45 7 Business (Long Stay) visa holder, who is facing the expiry of their visa just as they are about to satisfy permanent residence requirements, to apply for a further Temporary Business Entry (Class UC) visa without having to leave Australia;
• repeal redundant subregulation 4.02(2). Subregulation 4.02(2) gives merit review rights to applicants who have been refused a Subclass 100 (Spouse) visa or a Subclass 110 (Interdependency) visa. These applicants are now provided merit review rights under subsection 338(7A) of the Act;
• impose condition 8207 (no study or training) on a discretionary basis on a Subclass 050 (Bridging (General)) visa. This is so that a former student visa holder, whose student visa was cancelled for breach of visa conditions, cannot engage in study or training whilst holding a Subclass 050 (Bridging (General)) visa;
• harmonise existing criminal offence provisions in the Regulations with Chapter 2 of the Criminal Code (as contained in the Criminal Code Act 1995);
• replace the term 'special category visa' in regulation 1.05 with the term 'eligible New Zealand citizen' to reflect the changes made to the Regulations on 27 February 2001 in relation to New Zealand citizens and their family members;
• ensure that applications for several skilled points tested visas can only be validly made at certain addresses in Australia in order to case the burden at overseas posts and speed up visa processing;
• ensure that the health requirements for a Skilled - Independent Overseas Student (Residence) (Class DD) visa and Skilled - Australian-Sponsored Overseas Student (Residence) (Class DE) visa are consistent with other points tested visa health requirements;
• require that all skilled points tested applicants seeking to use prior work experience obtained in Australia to satisfy the recent work experience requirement be required to have held a substantive visa and worked in accordance with the terms of that visa;
• give the Minister the discretion to impose visa condition 8515 (must not marry before entering Australia) on certain skilled points tested visas. This will bring the skilled points tested visas in line with other similar visa classes;
• make technical amendments required as a consequence of amendments made to restructure the Special Eligibility visa class and subclasses on 1 July 2000. These technical amendments include:
- giving effect to the intention that only limited applicants can for a Special Eligibility (Residence)(Class AO) visa pursuant to section 48 of the Act;
- giving effect to the intention that all the applicants seeking to satisfy the primary criteria of Subclass 832 are required to satisfy specified public interest criteria and special return criteria.
• extend Migration Review Tribunal (MRT) application fee refund provisions to cover instances where the merit review applicant dies. This is because in these cases it is often impossible or impractical for the application to continue;
• align the time periods within which detention applicants must respond to certain invitations for information, so that all detention cases are processed and treated in the same manner;
• reduce the time period within which certain applicants (who have had their visa cancelled and are not in detention) must respond to certain invitations for information. This will assist the MRT to process cancellation cases more quickly;
• provide the MRT with the discretion to reduce the period of time for which the applicant must have notice of hearing and decision dates, where the MRT has the written consent of the review applicant; and
• allow applicants who currently have 2 working days plus a possible 5 additional working days within which to apply for merits review, a fixed 7 days within which to apply for merits review.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 1 November 2001.
Attachment A
Details of other relevant regulation-making powers are as follows:
- subsections 29(2) and (3) of the Act provide that the regulations may provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;
- subsection 31(1) of the Act provides that there are to be prescribed classes of visas;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;
- subsection 40(1) of the Act provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
- subsection 41(1) of the Act provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;
- subsection 41(3) of the Act provides that, in addition to any conditions specified under subsection 41 (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;
- subsection 46(1) of the Act provides that an application for a visa 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 circumstances that must exist for an application for a visa of a specified class to be a valid application, how 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;
- section 48 of the Act provides for the prescribing of classes of visas, being classes of visas for which a person who does not hold a substantive visa and whose visa application has been refused, or who has had their visa cancelled, may apply;
- paragraph 347(1)(b) of the Act provides that an application for review of an MRTreviewable decision must be given to the Tribunal within the prescribed period;
- subsection 359B(2) of the Act provides that if the Tribunal invites a person to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period;
- paragraph 359B(3)(b) of the Act provides that if the invitation is to give information or comments at an interview, the interview is to take place at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period;
- sub section 359B (4) of the Act provides that if a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period;
- paragraph 359B(5)(b) of the Act provides that if a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to a time within that period as extended by the Tribunal for a prescribed further period;
- subsection 360A(4) of the Act provides that the period of notice given [under subsection 360A(1)] must be at least the prescribed period or, if no period is prescribed, a reasonable period;
- subsection 368A(3) of the Act provides that the Tribunal must give the applicant and the Secretary written notice of the day on which, and the time and place at which, the decision is to be handed down. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period;
- paragraph 379F(1)(b) of the Act provides that if, in relation to the review of an MRTreviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so by a method set out in directions under section 353 A;
- paragraph 379F(1)(c) of the Act provides that if, in relation to the review of an MRTreviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so if the regulations set out a method for doing so-by that method;
- paragraph 504(1)(b) of the Act provides that the Governor-General may make regulations making provision for the remission, refund or waiver of fees of a kind referred to in paragraph 504(1)(a) of the Act or for exempting persons from the payment of such fees;
- paragraph 504(1)(e) of the Act provides that the Governor-General may make regulations making provision for and in relation to the giving of documents to, the lodging of documents with, or the service of documents on, the Minister, the Secretary, or any other person or body for the purposes of the Act;
- paragraph 504(1)(k) of the Act provides for the prescribing of penalties not exceeding a fine of $1,000 or imprisonment for 6 months in respect of offences against the regulations;
- subsection 504(3) of the Act provides that the regulations that may be made under paragraph 504(1)(e) include regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of the Act and the regulations to have been received by the person at a specified or ascertainable time.
Attachment B
Details of the Regulations are as follows:
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 7).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 November 2001.
Regulation 3 - Amendment of Migration Regulations 1994
regulation -provides that Schedule 1 amends the Migration Regulations 1994.
Regulation 4 - Transitional
Subregulation 4(1) provides that the amendments made by items [1] to [6], [38] to [54] and [60] to [73] of Schedule 1 apply to an application for a visa made on or after 1 November 2001.
Therefore, these amendments will not apply in relation to an application for a visa that was made prior to 1 November 2001, such as where the visa has not yet been granted, or merits review avenues have not been extinguished.
Subregulation 4(2) provides that the amendments made by items [20], [21], [30] and [31] of Schedule 1 apply to a notice that is given on or after 1 November 2001.
These provisions relate to:
• time frames within which applicants can make applications to the MRT for review of decisions; and
• notices given by the MRT to an applicant for review.
Subregulation 4(3) provides that the amendment made by item [25] of Schedule 1 applies to an application for review that is withdrawn on or after 1 November 2001.
This provision relates to a refund of the review application fee, which is made where an application for review by the Tribunal is withdrawn due to the fact that a review applicant has died.
Subregulation 4(4) provides that the amendments made by items [26] to [29] of Schedule 1 apply if the invitation to give additional information, or to comment on information, is given on or after 1 November 2001.
Subregulation 4(5) provides that the amendments made by items [55] to [59] of Schedule 1 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 1 November 2001; or
• made on or after 1 November 2001.
Therefore, the amendments mentioned above are intended to apply to new applications made on or after 1 November 2001, as well as existing applications that have not been finally determined as at 1 November 2001.
Schedule 1 Amendments
Item [1] - Sub-subparagraph 1.05(2)(a)(ii)(A)
Item [2] - Paragraph 1.05(2)(b)
These items substitute the term 'holder of a special category visa' for the term 'eligible New Zealand citizen' in subregulation 1.05(2).
The effect of the amendment is to provide that only a permanent resident or a New Zealand citizen who was in Australia and held a Subclass 444 (Special Category) visa at a certain time (an 'eligible New Zealand citizen') can count as a 'child' in the Balance of Family test required to be met by a parent seeking a Parent (Migrant) (Class AX) visa.
An applicant seeking a Parent (Migrant) (Class AX) visa is required by clause 103.213 to satisfy the Balance of Family test in subregulation 1.05(2)
The amendment to subregulation 1.05(2) requires that (at least) the balance of the children of the applicant are either permanent residents in Australia or are 'eligible New Zealand citizens'.
The amendment precludes children who are Subclass 444 (Special Category) visa holders (and who are not 'eligible New Zealand citizens') from being counted in the Balance of Family test. This is because Subclass 444 (Special Category) visa holders are only temporary visa holders.
The definition of 'eligible New Zealand citizen' was inserted as part of the changes made to the Regulations on 27 February 2001 in respect of New Zealand citizens and their family members.
One of the outcomes of those changes is that most New Zealand citizens arriving in Australia after 26 February 2001 are required to obtain an Australian permanent residence visa if they wish to sponsor a person for Australian permanent residence. An exception was made for certain New Zealand citizens who were defined as ' eligible New Zealand citizens'.
The definition of eligible New Zealand citizen in regulation 1.03, in summary, provides for a New Zealand citizen who was in Australia and held a Subclass 444 (Special Category) visa on 26 February 2001, or who was in Australia and held a Subclass 444 (Special Category) visa for 1 year or more in the 2 years before 26 February 2001, or who has been issued a certificate under the Social Security Act 1991 (demonstrating that they had firm prior plans to relocate to Australia).
In accordance with these changes, subregulation 1.05(2) is amended to provide that only 'eligible New Zealand citizens', not all Subclass 444 (Special Category) visa holders, can be counted toward the Balance of Family Test.
Item [3] - Subregulation 2.12(1)
This item makes a minor technical amendment to subregulation 2.12(1), replacing the words 'For the purposes of section 48 of the Act' at the commencement of the subregulation, with the words 'For section 48 of the Act'.
The amendment is made to maintain drafting consistency within the Regulations.
Item [4] - Paragraph 2.12(1)(a)
Previously paragraph 2.12(1)(a) prescribed the Special Eligibility (Residence) Class AO visa as a visa class for the purposes of section 48 of the Act.
This item substitutes paragraph 2.12(1)(a) prescribing, subject to subregulation 2.12(2), the Special Eligibility (Residence)(Class AO) visa as a visa class for section 48 of the Act.
The purpose of the amendment is to enable subregulation 2.12(2), inserted by the following item, to qualify when a person falling within section 48 of the Act may apply for a Special Eligibility (Residence) Class AO visa.
Item [5] - Before subregulation 2.12(3)
This item inserts new subregulation 2.12(2) providing that paragraph 2.12(1)(a) prescribing the Special Eligibility (Residence)(Class AO) visa as a visa class for the purposes of section 48 of the Act, applies to a person who meets the requirements of subclause 832.211(3) of Schedule 2 to the Regulations.
The purpose of the amendment is to limit the ability of a person falling within section 48 of the Act to apply for a Special Eligibility (Residence) Class AO visa to those persons who satisfy the requirements of subclause 832.211(3).
Item [6] - After regulation 2.27B
This item inserts new regulation 2.27C, which provides that in determining whether an applicant satisfies a criterion that an applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant held a substantive visa authorising him or her to work during that period.
There are currently no provisions in migration legislation barring an applicant who has breached a visa condition by working illegally while in Australia, from subsequently using this period of employment to satisfy a requirement that the applicant has been employed in a skilled occupation for a certain period.
The purpose of new regulation 2.27C is to prevent persons from gaining an advantage from working illegally in Australia and to provide consistency with the bonus points provisions in paragraph 6A81(b) of Schedule 6A.
Item [7] - Regulation 3.08
This item makes a technical amendment to regulation 3.08. The amendment inserts subsection (1) as a result of the insertion of subregulation 3.08(2) which is explained below.
Item [8] - Regulation 3.08, after the penalty
This item amends regulation 3.08 by inserting new subsection 3.08(2) which specifies that subregulation (1) is an offence of strict liability. Regulation 3.08 requires a person to complete a passenger card. A person who fails to do so faces a penalty of 10 penalty units (A penalty unit is currently $110: see section 4AA of the Crimes Act 1914).
Strict liability is defined in the Criminal Code and if an offence is intended to be one of strict liability, it must expressly state it. Section 6.1 and 6.2 of the Criminal Code requires that these provisions must expressly state that this is a strict liability offence if this is the intention. If this statement does not appear, the offence will be interpreted not to attract strict liability and s.5.6 of the Criminal Code will supply the fault elements by default.
Item [9] - Subregulation 3.11 (2)
This item amends subregulation 3.11(2) by omitting the words reasonable excuse. The defence of reasonable excuse is now found in new subregulation 3.11(3), which is explained below.
Item [10] - Subregulation 3.11(2), at the foot
This item amends regulation 3.11(2) to make it clear that the penalty attached to this offence is 10 penalty units. Regulation 3.11 requires a master of a vessel to produce the deportee or removee to an officer and makes it an offence for the master of a vessel to fail to comply. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
This item also inserts the standard note about proof of criminal responsibility. The note provides that, under subsection 13.3(3) of the Criminal Code, a defendant bears an evidential burden in relation to the matters in this offence.
Item [11] - After subregulation 3.11(2)
This item inserts a new subregulation 3.11(3) which states that subregulation 3.11(2) does not apply if the master of a vessel provides a defence of reasonable excuse.
Item [12] - Regulation 3.12, at the foot
This item amends regulation 3.12 to make it clear that the penalty attached to this offence is 10 penalty units. Regulation 3.12 looks at various offences made by a master of a vessel. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [13] - Subregulation 3.14(1), note
This item amends regulation 3.14 by deleting the note at the foot of the section. The note purports to be a reference to the global offence provision found at regulation 5.34. It is technically incorrect and inconsistent with the Commonwealth's criminal law policy in relation to global offences.
Item [14] - Subregulation 3.14(1), at the foot
This item amends subregulation 3.14(1) to make it clear that the penalty attached to this offence is 10 penalty units. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [15] - Subregulation 3.14(5), at the foot
This item amends regulation 3.14(5) to make it clear that the penalty attached to this offence is 10 penalty units. This subregulation requires the master of an inbound civilian vessel to give the officer a specified number of copies of a document containing particulars of the overseas passenger if required by the officer. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [16] - Subregulation 3.15(4), at the foot
This item amends regulation 3.15 to make it clear that the penalty attached to this offence is 10 penalty units. This regulation requires the medical officer of a vessel to give the officer a medical certificate specifying if the overseas passenger that may be a danger to the Australian community. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [17] - Subregulation 3.16(2), at the foot
This item amends subregulation 3.16(2) to make it clear that the penalty attached to this offence is 10 penalty units. This subregulation requires the master of an outbound civilian vessel to give the officer a specified number of copies of a document containing particulars of the overseas passenger if required by the officer. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [18] - Subregulation 3.17(2), at the foot
This item amends subregulation 3.17(2) to make it clear that the penalty attached to, this offence is 10 penalty units. This subregulation makes it a requirement for the master of a vessel to produce a list of every member of the crew on board the vessel to the officer. This amendment is the result of repeal of regulation 5.34 by these regulations. Regulation 5.34 is a "global" penalty provision which is no longer consistent with the Commonwealth's criminal law policy. The Criminal Code requires that offences are clear on their face and that the applicable penalty should appear at the end of each specific offence.
Item [19] - Subregulations 4.02(2) and (3)
This item repeals subregulations 4.02 (2) and (3).
The subregulations are being repealed because subregulation 4.02(2) provides a review right for applicants who have been refused the grant of a Subclass 100 (Spouse) or Subclass 110 (Interdependency) visa. These applicants are now provided a review night by subsection 338(7A) of the Act. Accordingly, subregulation 4.02(2) is no longer necessary.
Therefore, subregulation 4.02 (2), and subregulation, 4.02 (3), which relates solely to subregulation 4.02 (2), are repealed.
Item [20] - Paragraph 4.10(1)(b)
This item omits paragraph 4.10(1)(b) and substitutes new paragraph 4.10(1)(b).
Subregulation 4.10(1) sets out the time frame within which an applicant can make an application to the Migration Review Tribunal (the MRT) for review of a decision.
The decisions in the omitted paragraph include most decisions to cancel a visa held by a noncitizen who is in the migration zone at the time of cancellation, and a decision not to revoke a cancellation under section 137L.
The time frame for these decisions is 2 working days from the date at which the notice was received, and an additional 5 working days if the applicant gives notice to the tribunal that they intend to apply to have the decision reviewed
New paragraph 4.10 (1)(b) provides that the period starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received. There is no further extension period provided under paragraph 4.10 (1)(b).
Item [21] - Paragraph 4.10(2)(b)
This item omits paragraph 4.10(2)(b) and substitutes new paragraph 4.10(2)(b).
Subregulation 4.10(2) sets out the time frame for which detainees can make an application to the MRT for review of a decision.
The time frame for these decisions in the omitted paragraph is 2 working days from the date at which the notice was received, and an additional 5 working days if the detainee gives notice to the tribunal that they intend to apply to have the decision reviewed.
New paragraph 4.10 (2)(b) provides that the period starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received. There is no further extension period provided under paragraph 4.10 (2)(b).
There is no change to those cases (refused or cancelled bridging visas resulting in detention) where a 2 working day review application period applies.
Item [22] - Subregulation 4.10(3)
This item omits subregulation 4.10(3), consequential to the amendments to subregulations 4. 10(1) and (2), above.
Item [23] - Subregulation 4. 10(0
This item specifies when an application that is sent to the MRT by fax or other electronic means is taken to be given to the Tribunal.
Item [24] - Regulation 4.11
This item omits regulation 4.11 and substitutes new regulation 4.11.
The omitted regulation allows most detainees to be considered to have 'lodged' their MRT application at the time they hand that application to an Immigration officer at a detention centre. However, those in detention as a result of a refusal or cancellation of a bridging visa are not considered to have lodged their application until it is received by the MRT.
New regulation 4.11 extends the facility for lodgment of an MRT application with an Immigration officer to all detainees. It does, however, impose the new condition that this must be at least 1 working day before the expiry of the period in which the application for review must be given.
New regulation 4.11 also allows applicants to lodge their application to the Tribunal by electronic means, in line with the Electronic Transactions Act 1999.
Item [25] - After subparagraph 4.14(2)(a)(ii)
New subparagraph 4.14(2)(a)(ii) provides for a refund of the review application fee to be made where an application for review by the Tribunal is withdrawn due to the fact that a review applicant has died. Prior to this amendment, subregulation 4.14(2) has only provided for a refund on withdrawal if the visa applicant has been granted a visa of the type under review, or if the visa applicant or a member of their family unit has died.
Subparagraph 4.14(2)(a)(iii) is being inserted because without a review applicant, who is most usually the sponsor or nominator, the visa applicant can no longer meet an objective criterion of the visa under review, and therefore cannot succeed in their review application.
Item [26] - Subregulations 4.17(2) and (3)
New subregulation 4.17(2) relates to reviews of decisions involving detainees. New subregulation 4.17(2) sets out the time period in which a person may take to respond to an invitation, other than at an interview, by the Tribunal to provide further information. The period for all people providing information is now 2 working days after the day on which the invitation is received.
New subregulation 4.17(3) applies to applications for review of a decision to cancel a visa that applies to people who are not detainees. The period for all people providing information is now 5 working days after the day on which the invitation is received.
Item [27] - Subregulations 4.18(2), (3) and (4)
New subregulation 4.18(2) relates to an invitation to give additional information at an interview. If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period under paragraph 4.18(2)(a) for giving the information. or comments starts when the person receives the invitation and ends at the end of 2 working days after the day on which the invitation is received.
New paragraph 4.18(2)(b) allows for this time period to be expedited. If the detainee agrees in writing, the time period can be shortened to 1 working day.
New subregulation 4.18(3) relates to an invitation to give additional information at an interview. If the invitation relates to an application for review of a decision that applies to a person who is not a detainee, the prescribed period under paragraph 4.18(3)(a) for giving the information or comments starts when the person receives the invitation and ends at the end of 5 working days after the day on which the invitation is received.
New paragraph 4.18(3)(b) allows for this time period to be expedited. If the detainee agrees in writing, the time period can be shortened to 1 working day.
Item [28] - Subregulations 4.18A(2) and (3)
New subregulation 4.18A(2) relates to the extension of time periods for responses to invitations, other than at interview, to provide further information in review cases involving a detainee. It provides that where an invitation to respond has been issued, an extension of the time given to respond may be given by the Tribunal of not longer than 2 working days after the day on which the notice is received.
New subregulation 4.18A(3) relates to the extension of time periods for responses to invitations, other than at interview, to provide further information in review cases not involving a detainee and which relate to the cancellation, or a decision not to revoke a cancellation of a visa. The Tribunal may give an extension on the time to respond of not longer than 5 working days after the day on which the notice is received.
Item [29] - Subregulations 4.18B(2) and (3)
New subregulation 4.1813(2) relates to the extension of time periods for responses to invitations, at interview, to provide further information in review cases involving a detainee. It provides that where an invitation to respond has been issued, an extension of the time given to respond may be given by the Tribunal of not longer than 2 working days after the day on which the notice is received.
New subregulation 4.1813(3) relates to the extension of time periods for responses to invitations, at interview, to provide further information in review cases not involving a detainee and which relate to the cancellation, or a decision not to revoke a cancellation of a visa. The Tribunal may give an extension on the time to respond of not longer than 5 working days after the day on which the notice is received.
Item [30] - Paragraph 4.21 (b)
Regulation 4.21 provides the prescribed periods in which an invitation to appear before the Tribunal can be sent out to a review applicant. In most cases, the MRT must provide at least 7 working days notice of a hearing for an applicant not in detention. If the invitation is to be by post, then an additional 7 calendar days from the date of the letter is added. In some cases the applicant has expressed their desire to have their hearing commence earlier than this minimum notice period allows. Minimising the notice period in cases where the applicant is willing would also reduce the burden upon the MRT.
This item substitutes new subparagraphs 4.21(b)(i) and (b)(ii), which provide that where the applicant is not a detainee, the prescribed period starts when the applicant receives notice of the invitation to appear before the Tribunal and ends either at the end of 7 working days after the day on which the notice is received, or, if the applicant agrees in writing, at the end of a shorter period that is not less than 1 working day.
Item [31] - Paragraph 4.27A(b)
Regulation 4.27A provides that, in most cases, the MRT must provide a minimum of 7 calendar days notice of the handing down of a decision. If notification of the handing down of a decision is to be by post, then an additional 7 calendar days from the date of the letter is added (see subsection 379C(4) of the Act). In some cases the applicant wishes to receive the decision earlier than this minimum notice period allows.
This item substitutes new sub-paragraphs 4.27A(b)(i) and (b)(ii), which provide that the notice period for the handing down of a decision ends at the end of 5 working days after the notice of a decision is received by the applicant, or, if the applicant agrees in writing, at the end of a shorter period that is not less than 1 working day.
Item [32] - Regulation 5.05
This item restructures regulation 5.05 by creating subregulation 5.05(1). The amendment is consequential on the insertion of new subregulation 5.05(2) by item 33 below.
Item [33] - Regulation 5.05, after the penalty
This item amends regulation 5.05 by specifying that the offence in the regulation is an offence of strict liability.
Strict liability is defined in the Criminal Code and if an offence is intended to be one of strict liability, it must expressly state it. Section 6.1 and 6.2 of the Criminal Code requires that these provisions must expressly state that this is a strict liability offence if this is the intention. If this statement does not appear, the offence will be interpreted not to attract strict liability and section 5.6 of the Criminal Code will supply the fault elements by default.
Item [34] - Regulation 5.09
This item removes the defence of 'reasonable cause' from paragraph 5.09(1)(a). The intention here is to put beyond doubt that 'reasonable cause' is a defence to, and not an element of the offences. Paragraph 5.09(1)(a) makes it a requirement that a person summoned to attend before a Commissioner as a witness must not: without reasonable cause, fail to attend, after payment or tender to the person of a reasonable sum for expenses of attendance.
Paragraph 5.09(1)(d) makes it a requirement that a person summoned to attend before a Commissioner as a witness must not: without reasonable cause, refuse or fail to produce a book or document which the person was required by the summons to produce.
The presence of an express defence, in particular the defence of reasonable excuse, is another indicator that fault need not be proved. It is accepted that the provision of a broadly-based defence (such as the defence of reasonable excuse) is sufficient grounds for the imposition of strict liability.
This item replaces the defence of 'reasonable excuse' with reasonable cause to the offences in paragraph s 5.09(1)(a) and (1)(d). It is preferable to use the term 'reasonable excuse' to 'reasonable cause' as this would make offences in the regulations consistent with those in the Act.
Paragraph 5.09(1)(a) is an offence of strict liability. Strict liability is defined in the Criminal Code and if an offence is intended to be one of strict liability, it must expressly state it. Section 6.1 and 6.2 of the Criminal Code requires that these provisions must expressly state that this is a strict liability offence if this is the intention. If this statement does not appear, the offence will be interpreted not to attract strict liability and s.5.6 of the Criminal Code will supply the fault elements by default.
This item also inserts the standard note about proof of criminal responsibility. The note provides that, under subsection 13.3(3) of the Criminal Code, a defendant bears an evidential burden in relation to subregulation 5.09(2).
Item [35] - Paragraph 5.12(a)
This item amends paragraph 5.12(a) by substituting the word 'wilfully' with the word 'intentionally'. Paragraph 5.12(a) states that a person must not wilfully insult or disturb a Commissioner when exercising powers and functions under the Act. The word wilfully is used in the same way as the word 'intentionally'. The word intention will be implied by operation of section 5.6 of Criminal Code.
Item [36] - Paragraph 5.12(d)
This item amends paragraph 5.12(d) by substituting the term 'improperly' for the physical element of conduct with the word "dishonestly". Paragraph 5.12(d) states that a person must not by writing or speech use words calculated to influence improperly a Commissioner or a witness before a Commissioner. This change is in accordance with the provisions in the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 1999.
Item [37] - Regulation 5.34
This item repeals regulation 5.34 which as a result of Chapter 2 of the Criminal Code is no longer consistent with the Commonwealth's Criminal Law policy in relation to global criminal offences. The Code requires that all offences are clear on their face and the applicable penalty should appear at the end of each specific offence.
Item [38] - Schedule 1, paragraph 1128AA(3)(a)
This item omits paragraph 1128AA (3)(a), and inserts new paragraphs 1128AA (3)(a) and (3)(aa).
Together these new paragraphs require that an application for a Skill Matching (Migrant) (Class BR) visa be made in Australia (but not in immigration clearance), and require that the application be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128AA(3)(a) required an application for a visa of this class to be made outside Australia.
The reason for the amendment is to require that all applications for a Skill Matching (Migrant) (Class BR) visa are made in Australia at an address specified by the Minister.
Applications for this visa class are to be processed on-shore in one location resulting in improved processing efficiency.
Item [39] - Schedule 1, paragraph 1128B(3)(a)
This item omits paragraph 1128B(3)(a), and inserts new paragraphs 1128B(3)(a) and (3)(aa).
Together these new paragraphs require that an application for a Skilled - Australian-sponsored (Migrant) (Class BQ) visa be made in Australia (but not in immigration clearance), and require that the application be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128B(3)(a) required an application for a visa of this class to be made outside Australia.
The reason for the amendment is to require that all applications for a Skilled - Australian-sponsored (Migrant) (Class BQ) visa are made in Australia at an address specified by the Minister. Applications for this visa class are to be processed on-shore in one location resulting in improved processing efficiency.
Item [40] - Schedule 1 subparagraph 1128B
This item removes the requirement in subparagraph 1128BA(3)(c)(i) that an application for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa be accompanied by evidence that an applicant undergoes a medical examination, for the purpose of the application, during the 3 months immediately before the day the application is made.
Subparagraph 1128BA(3)(c)(i) now requires that an application for a Skilled Australian-sponsored Overseas Student (Residence) (Class DE) visa be accompanied by satisfactory evidence that the applicant has undergone a medical examination, for the purpose of the application.
The reason for the amendment is to provide greater flexibility for Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa applicants in fulfilling all required health checks.
Item [41] - Schedule 1, paragraph 1128BA(3)(h)
This item omits paragraph 1128BA(3)(h) and substitutes new paragraph 1128BA(3)(h).
Substituted paragraph 1128BA(3)(h) provides that an application for a Skilled Australiansponsored Overseas Student (Residence) (Class DE) visa must be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128BA(3)(h) required an application for a visa of this class to be made by posting the application to the post office box address approved in writing by the Minister.
The reason for the amendment is allow the Minister to specify an address to which an application for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa may be delivered by a courier service.
Item [42] - Schedule 1, paragraph 1128C (3) (a)
This item omits paragraph 1128C(3)(a), and inserts new paragraphs 1128C(3)(a) and (3)(aa).
Together these paragraphs require that an application for a Skilled - Independent (Migrant) (Class BN) visa be made in Australia (but not in immigration clearance), and require that the application be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128C(3)(a) required an application for a visa of this class to be made outside Australia.
The reason for the amendment is to require that all applications for a Skilled Independent (Migrant) (Class BN) visa are made in Australia at an address specified by the Minister. Applications for this visa class are to be processed on-shore in one location resulting in improved processing efficiency.
Item [43] - Schedule 1, paragraph 1128CA(3)(c)
This item omits paragraph 1128CA(3)(c) an substitutes new paragraph 1128CA(3)(c).
Substituted paragraph 1128CA(3)(c) provides that an application for a Skilled Independent Overseas Student (Residence) (Class DD) visa must be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128CA(3)(c) required an application for a visa of this class to be made by posting the application to the post office box address approved in writing by the Minister.
The reason for the amendment is allow the Minister to specify an address to which an application for a Skilled - Independent Overseas Student (Residence) (Class DD) may be delivered by a courier service.
Item [44] - Schedule 1, subparagraph 1128CA(3)(d)(i)
This item removes the requirement in subparagraph 1128CA(3)(d)(i) that an application for a Skilled - Independent Overseas Student (Residence) (Class DD) visa be accompanied by evidence that an applicant undergoes a medical examination, for the purpose of the application, during the 3 months immediately before the day the application is made.
Subparagraph 1128CA(3)(d)(i) now requires that an application for a Skilled Independent Overseas Student (Residence) (Class DD) visa be accompanied by satisfactory evidence that the applicant has undergone a medical examination, for the purpose of the application.
The reason for the amendment is to provide greater flexibility for Skilled - Independent Overseas Student (Residence) (Class DD) visa applicants in fulfilling all required health checks.
Item [45] - Schedule 1, paragraph 1128D(3)(aa)
This item omits paragraph 1128D(3)(aa) and substitutes new paragraph 1128D (3)(aa).
Substituted paragraph 1128D(3)(aa) provides that an application for a Skilled - New Zealand Citizen (Residence) (Class DB) visa must be made by posting the application to the post office box specified by the Minister, or by having the application delivered by a courier service to the address specified by the Minister.
Previously paragraph 1128D(3)(aa) required an application for a visa of this class to be made by posting the application to the post office box address approved in writing by the Minister.
The reason for the amendment is allow the Minister to specify an address to which an application for a Skilled - New Zealand Citizen (Residence) (Class DB) visa may be delivered by a courier service.
Item [46] - Schedule 1, paragraph 1223A(3)(aa)
This item amends paragraph 1223A(3)(aa) by replacing the words 'Subject to paragraph (ab)' with the words "Subject to paragraphs (ab) and (ad)'.
The amendment is consequential to the insertion of new paragraph 1223A(3)(ad) by item 47 below. The intended effect of the amendment is that paragraph 1223A(3)(aa) be read subject to new paragraph 1223A(3)(ad).
Item [47] - Schedule 1, after paragraph 1223A(3)(ac)
This item inserts new paragraph 1223A(3)(ad) providing that an application by
• an applicant who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the applicant met the requirements of subclause 457.223(7); and
• who on the day on which the application is made had been conducting a business in Australia as a principal for at least 15 months, or if for a lesser period, had received an endorsement of the business as beneficial to a State or Territory from the government of that State or Territory
must be made in Australia but not in immigration clearance.
The purpose of the amendment is to enable an 'Independent executive' visa holder, being a person who holds a Subclass 457 visa granted on the basis that he or she met the requirements of subclause 457.223(7), who has been conducting a business in Australia as a principal for at least 15 months, or if for a lesser period, who has the endorsement of a State or Territory government, to apply on-shore for a new visa of the same class.
Item [48] - Schedule 2, clause 050.611
Item [49] - Schedule 2, clause 050.611A
Item [50] - Schedule 2, paragraph 050.611B(b)
Item [51] - Schedule 2, subclause 050.612A(3)
Item [52] - Schedule 2, clause 050.613
Item [53] - Schedule 2, subclause 050.613A(2)
Item [54] - Schedule 2, clause 050.614
These items insert a reference to condition 8207 into clauses 050.611, 050.611A, 050.613 and 050.614, paragraph 050.611B(b) and subclauses 050.612A(3) and 050.613A(2) to Part 050 of Schedule 2 to the Regulations.
Condition 8207 precludes the visa holder from engaging in study or training in Australia.
A former student visa holder, whose student visa was cancelled for breach of conditions, may apply for a Bridging E (Class WE) visa in order to seek revocation of the decision to cancel or to pursue merits review.
This amendment provides the Minister with the discretion to impose condition 8207 on a Subclass 050 (Bridging (General)) visa. This is to ensure that a former student visa holder, whose student visa was cancelled for breach of conditions, cannot continue to engage in study or training whilst holding the Subclass 050 (Bridging (General)) visa.
Item [55] - Schedule 2, after clause 134.612
Item [56] - Schedule 2, after clause 136.612
Item [571 - Schedule 2, after clause 137.612
Item [58] - Schedule 2, after clause 138.612
Item [59] - Schedule 2, after clause 139.612
These items insert new clauses 134.613, 136.613, 137.613, 138.613, and 139.613 into Subclasses 134, 136, 137, 138 and 139. The new clauses provide that condition 8515 (applicant not to marry before initial entry) may be imposed in connection with the grant of a visa of the following visa Subclasses:
• Subclass 134 - Skill Matching;
• Subclass 136 - Skilled - Independent;
• Subclass 137 - Skilled - State/territory-nominated independent;
• Subclass 138 - Skilled - Australian-Sponsored; and
• Subclass 139 - Skilled - Designated Area-Sponsored.
Condition 8515 can currently be imposed on family and business skills visa Subclasses.
The purpose of the amendment is to enable this condition to also be imposed in relation to the granting of skilled visa subclasses, with the intention of bringing the skilled visa subclasses into parity with the family and business skills visa subclasses in respect of the ability to impose condition 8515.
Item [60] - Schedule 2, clause 442.223
This item contains an amendment to paragraph 442.223(a) to make it a requirement that the occupational training that the applicant will undertake as the holder of a Subclass 442 (Occupational Trainee) Visa is workplace-based rather than classroom based. This will enhance the integrity of Subclass 442 by ensuring that applicants who apply for an Occupational Trainee visa are not doing so in order to avoid satisfying requirements for the grant of a student visa.
Item [61] - Schedule 2, subclause 457.223(1)
This item makes a technical amendment to subclause 457.223(1) replacing references to subclauses (7), (8) or (9), with references to subclauses (7), (7A), (8) or (9).
The amendment is consequential on the insertion of new subclause 457.223(7A) by item 62 below. The amendment has the effect of enabling an applicant to satisfy subclause 457.223(1) by meeting the requirements of subclause 457.223(7A).
Item [62] - Schedule 2, after subclause 457.223(7)
This item inserts new subclause 457.223(7A) into Subclass 457 setting out criteria that an
'Independent executive' visa holder must satisfy to meet the requirements of subclause 457.223(1).
To satisfy subclause 457.223(7A) an applicant must
• be the holder of a Subclass 457 visa granted on the basis that the applicant met the requirements of subclause 457.223(7); and
• on the day on which the application is made had conducted the business in Australia as a principal for at least 15 months, or if for a lesser period, a government of a State or Territory had endorsed the business as beneficial to the State or Territory; and
• the Minister must be satisfied that:
- the business is of benefit to Australia; and
- the applicant has a commitment to maintaining an ownership interest in the business, to maintaining a direct involvement in the management of the business;, and to making day to day business decisions; and
• nothing adverse is known to Immigration about the applicant's business background; and
• the applicant has net assets of AUD 250,000 or a lesser amount adequate to conduct the business; and
• the applicant has demonstrated that there is a need for the applicant to be temporarily resident in Australia to conduct the business.
Item [63] - Schedule 2, paragraph 457.224(b)
This item substitutes paragraph 457.224(b) providing that if the applicant is the holder of a visa granted on the basis that the applicant met the requirements of subclause 457.223(7), and the applicant seeks a visa on the basis that the applicant meets the requirements of subclause 457.223(7A), the applicant must satisfy public interest criteria 4005.
Previous paragraph 457.224(b) is renumbered as paragraph 457.224(c).
Item [64] - Schedule 2, after clause 457.226
This item inserts new clause 457.227 into Division 457.2. Division 457.2 sets out the primary criteria that must be satisfied by at least one member of the family unit.
New subclause 457.227(1) provides that in relation to a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A), each member of the family unit who is an applicant for a Subclass 457 visa must satisfy specified public interest criteria and special return criteria.
New subclause 457.227(2) provides that in relation to a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A), each member of the family unit who is not an applicant for a Subclass 457 visa must also satisfy specified public interest criteria and special return criteria.
If a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A), does not satisfy the requirements of subclause 457.227(1), or alternatively, of subclause 457.227(2), the applicant seeking to meet the requirements of subclause 457.223(7A) does not satisfy clause 457.227.
The intention is that should one member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A) fail to satisfy the public interest criteria or special return criteria set out in clause 457.227, the applicant who seeks to meet the requirements of subclause 457.223(7A), will fail to meet the criteria of clause 457.227.
Item [65] - Schedule 2, after paragraph 457.325(a)
This item inserts new paragraph 457.325(aa) setting out the public interest criterion that an applicant who is a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A) must meet to satisfy clause 457.325.
An applicant who is a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223(7A) must satisfy public interest criterion 4005.
Item [66] - Schedule 2, paragraph 457.511(c)
Division 457.5 sets out when a Subclass 457 visa is in effect.
This item substitutes paragraph 457.511(c), and previous paragraph 457.511(c) is renumbered as paragraph 457.511 (d).
Substituted paragraph 457.511 (c) provides that in the case of the holder of a Subclass visa granted on the basis that the holder met the requirements of subclause 457.223(7A), the holder is entitled to remain in Australia for a period of 2 years from the date of the grant.
Item [67] - Schedule 2, paragraph 832.221(2)(b)
Item [69] - Schedule 2, paragraph 832.221(3)(b)
These items make technical amendments to paragraphs 832.221(2)(b) and 832.221(3)(b) respectively, to enable the insertion of new paragraphs 832.221(2)(c) and (d) and 832.221(3)(c) and (d) by these Regulations.
Item [68] - Schedule 2, after paragraph 832.221(2)(b)
Item [70] - Schedule 2, after paragraph 832.221(3)(b)
These items insert new paragraphs 832.221(2)(c) and 832.221(3)(c) providing that an applicant for a Subclass 832 - Close Ties visa, must satisfy public interest criteria 4001, 4002, 4003, 4007, 4009 and 4010.
These items also insert paragraphs 832.221(2)(d) and 832.221(3)(d) providing that if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
The purpose of the amendment is to require an applicant for a Subclass 832 - Close Ties visa to satisfy the specified public interest criteria and the special return criteria.
Item [71] - Schedule 2, paragraph 832.221(4)
This item substitutes paragraph 832.221(4)(b) providing that an applicant for a Subclass 832 -Close Ties visa must satisfy public interest criteria 4001, 4002, 4003, 4007, 4009 and 4010.
Previously paragraph 832.221(4)(b) required an applicant to satisfy public interest criterion 4005. The amendment has replaced the requirement to satisfy public interest criteria 4005 with a requirement to satisfy public interest criteria 4007.
Public interest criterion 4007 allows the Minister to waive specified health requirements set out in that criterion if the applicant satisfies all other criteria for the grant of the visa, and the Minister is satisfied that it would be unlikely to result in either undue cost to the Australian community or undue prejudice to the access to health care facilities of an Australian citizen or permanent resident.
Public interest criterion 4005 imposes the same health requirements as public interest criterion 4007, but does not allow the Minister the discretion to waive the health requirements.
This item also inserts paragraph 832.221(4)(c) providing that if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
Item [72] - Schedule 2, clause 832.222
Previously paragraph 832.222 applied to an applicant for a Subclass 832 visa who met the requirements of subclause 832,212(5). The clause required each member of the family unit of that applicant, who is also an applicant for a Subclass 832 visa, to satisfy specified public interest criteria. It also required each member of the family unit of that applicant who is not an applicant, to satisfy specified public interest criteria.
This item substitutes clause 832.222 extending the application of the clause to all applicants for a Subclass 832 visa. It replaces the requirement on family unit members to satisfy public interest criterion 4005 with a requirement to satisfy public interest criterion 4007, including allowing the Minister to waive the requirement to satisfy public interest criterion 4007 in the case of a member of the family unit who is not also an applicant for the visa. It also requires a family unit member who is an applicant to satisfy special return criteria 5001 and 5002.
Public interest criterion 4005 imposes the same health requirements as public interest criterion 4007, but does not allow the Minister the limited discretion to waive the health requirements. The reason for replacing public interest criterion 4005 with public interest criterion 4007, is to allow the Minister to exercise the discretion in public interest criterion 4007 to waive the health requirements.
Item [73] - Schedule 2, clause 832.322
Previously clause 832.322 required an applicant who is a member of the family unit of a person who meets the requirements of subclause 832.221(5), to satisfy specified public interest criteria.
This item substitutes clause 832.322 extending the application of the clause to all applicants seeking to satisfy the secondary criteria. It also replaces the previous requirement to satisfy public interest criterion 4005 with a requirement to satisfy public interest criterion 4007, and finally newly requires applicants seeking to satisfy the secondary criteria to satisfy special return criteria 5001 and 5002.
The extension of clause 832.322 to all applicants seeking to satisfy the secondary criteria, and the new requirement that applicants satisfy special interest criteria 5001 and 5002, are consequential on the extension of clause 832.222 to all primary applicants. Clause 832.222 requires each member of the family unit of the primary applicant to satisfy specified public interest criteria and special return criteria. If a member of the family unit of the primary applicant does not satisfy the requirements, the primary applicant does not satisfy clause 832.222.
The reason for the amendment to clause 832.322 is to require all applicants seeking to satisfy the secondary criteria to meet the same specified public interest criteria and special return criteria requirements set out in clause 832.222.
Public interest criterion 4005 imposes the same health criteria as public interest criterion 4007, but does not allow the Minister the limited discretion to waive the health requirements.
The reason for replacing public interest criterion 4005 with public interest criterion 4007, is to allow the Minister to exercise the discretion in public interest criterion 4007 to waive the health criteria.