MIGRATION AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 10

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 10

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 10

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

Migration Act 1958

Migration Amendment Regulations 2002 (No. 1)

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 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 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 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; and

- 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 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.

The purpose of the Regulations is to amend the Migration Regulations 1994 to:

• overcome potential problems in the new student visa subclasses that were identified by the Federal Court in relation to Subclass 560 (Student) visas. The new student visa subclasses were introduced on 1 July 2001, while the Subclass 560 (Student) visa was repealed on that date. The potential problems relate to whether a student is a genuine applicant for entry and stay as a student (items [17], [24], [31], [38], [45] and [52] of Schedule 2 refer);

• allow certain applicants for a Subclass 574 (Masters and Doctorate Sector) visa (student visa) to remain in Australia during the marking of their postgraduate thesis, where their educational institution requires them to do so. Such students may otherwise have to leave Australia and apply for a different visa, for example a visitor visa in order to return to Australia (item [65] of Schedule 2 refers);

• rectify some unintended consequences and inconsistencies with policy intentions in relation to the new student visa regime that was introduced on 1 July 2001 (items [6] to [12], [14] to [16], [18] to [23], [25] to [30], [32] to [37], [39] to [44], [46] to [51], [53] to [58], [60] to [64] and [66] to [82] of Schedule 2 refer);

• enable the spouse of the holder of an `independent executive' Subclass 457 (Business (Long Stay)) visa to apply for a further Subclass 457 visa while in Australia (items [1] to [3] of Schedule 1 refer);

• preserve the position of an applicant who held a substantive Subclass 457 (Business (Long Stay)) visa at the time of application for a further visa of that kind, but who at the time of decision no longer holds that visa (item [3] of Schedule 1 refers);

• reflect changes in the new Commonwealth administrative arrangements order made on 26 November 2001 (the schedule for which was amended on 20 December 2001). As a consequence, minor amendments have been made to the definitions for some Ministers and Portfolios in regulation 1.03 and Subclass 420 (Entertainment) (items [1] to [4] and [13] of Schedule 2 refer); and

• insert in subregulation 1.05A(2) a reference to "Refugee and Humanitarian (Class XB) visa". This minor amendment is a consequence of the insertion of visa Class XB in the Regulations made by the Migration Amendment (Excision from the Migration Zone) (Consequential Provisions) Act 2001 (item [5] of Schedule 2 refers).

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 March 2002 other than Regulations 1 to 4 and Schedule 1, which are taken to have commenced on 1 November 2001. The retrospectivity in relation to Regulations 1 to 4 and Schedule 1 is not prejudicial to any person and does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

0107975A-020205Z

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 1).

Regulation 2 - Commencement

This regulation provides that:

- regulations 1 to 4 and Schedule 1 are taken to have commenced on 1 November 2001; and

- regulation 5 and Schedule 2 commence on 1 March 2002.

Regulation 3 - Amendment of Migration Regulations 1994

Subregulation 3(1) provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 as amended by the Migration Amendment Regulations 2001 (No. 7).

Subregulation 3(2) provides that Schedule 2 to these Regulations amends the Migration Regulations 1994.

Regulation 4 - Transitional - amendments made by Schedule 1

This regulation provides that amendments made by Schedule 1 to these Regulations apply in relation to an application for a visa made on or after 1 November 2001.

Regulation 5 - Transitional - amendments made by Schedule 2

Subregulation 5(1) of these Regulations provides that the amendments made by items [6], [17], [19], [24], [26], [31], [33], [38], [40], [45], [47], [52], [54], [59] and [63] to [82] of Schedule 2 to these Regulations 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 March 2002, or made on or after 1 March 2002.

Subregulation 5(2) of these Regulations provides that the amendments made by the remainder of Schedule 2 apply in relation to an application for a visa made on or after 1 March 2002.

The effect of subregulation 5(2) is to ensure that the amendments made by Schedule 2 that are not mentioned in subregulation 5(1) apply only in relation to an application made on or after 1 March 2002. Therefore, the amendments will not affect an applicant who made his or her application prior to 1 March 2002, where that application has not yet been finally determined (within the meaning of subsection 5(9) of the Act).

Schedule 1 - Amendments

Item [1] - Schedule 1, paragraph 1223A(3)(aa)

This item inserts a reference to paragraph 1223A(3)(ae) into paragraph 1223A(3)(aa).

The amendment is technical, reflecting the insertion of new paragraph 1223A(3)(ae) into subitem 1223A(3) by these Regulations.

The amendment clarifies that paragraph 1223A(3)(aa) is to be read subject to new paragraph 1223A(3)(ae).

Item [2] - Schedule 1, after paragraph 1223A(3)(ad)

This item inserts new paragraph 1223A(3)(ae) into subitem 1223A(3) of Schedule 1 of the Regulations.

Paragraph 1223A(3)(ae) provides that an application by an applicant who

• holds a Subclass 457 (Business (Long Stay)) visa ("Subclass 457 visa") granted on the basis that the applicant met the secondary time of decision criteria set out in Subdivision 457.32; and

• is the spouse of a person who holds a visa of a kind mentioned in subparagraph 1223A(3)(ad)(i) [that is, a Subclass 457 visa granted on the basis that the applicant met the primary time of decision criteria set out in subclause 457.223(7) relating to `independent executives']; and

• on the day on which the application is made

- had been conducting the business in Australia as a principal for at least 15 months; or

- if the applicant had been conducting the business in Australia as a principal for less than 15 months - had received an endorsement of the business as beneficial to a State or Territory from the government of the State or Territory;

must be made in Australia but not in immigration clearance.

The purpose of the amendment is to enable the spouse of an `independent executive' visa holder, being a person who holds a Subclass 457 visa granted on the basis that he or she met the criteria of subclause 457.223(7), to apply for a further Subclass 457 visa while in Australia.

On 1 November 2001 amendments were made to the Regulations by the Migration Amendment Regulations 2001 (No. 7) to enable the holder of an `independent executive' visa to apply for a further Subclass 457 visa in Australia. Those amendments did not enable the spouse of an `independent executive' to also apply for a further Subclass 457 visa in Australia. The exclusion of spouses was an unintended outcome of those amendments.

New paragraph 1223A(3)(ae) enables the spouse of an `independent executive' visa holder to also apply for a further visa of that kind while in Australia.

This item has a retrospective commencement date of 1 November 2001. The retrospectivity benefits the spouses of `independent executive' visa holders who applied, or who purported to apply, in Australia on or after 1 November 2001 for a further Subclass 457 visa.

The retrospectivity is not prejudicial to any person, and does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

Item [3] - Schedule 2, paragraph 457.223(7A)(a)

This item substitutes paragraph 457.223(7A)(a) of Schedule 2 of the Regulations with a new provision setting out certain matters that an applicant must meet to satisfy the requirements of subclause 457.223(7A).

Subclause 457.223(7A) sets out the primary time of decision criteria to be satisfied by an applicant for a further Subclass 457 visa made in Australia pursuant to paragraph 1223A(3)(ad) or new paragraph 1223A(3)(ae).

New paragraph 457.223(7A)(a) requires an applicant to either:

• hold a Subclass 457 visa granted on the basis that the applicant met the primary time of decision criteria set out in subclause 457.223(7), or the secondary time of decision criteria set out in Subdivision 457.32 of the Regulations; or

• to have last held a substantive visa, being a Subclass 457 visa granted on the basis that the applicant met the criteria set out in subclause 457.223(7) or Subdivision 457.32 of the Regulations.

This amendment extends subclause 457.223(7A) to a person who holds a Subclass 457 visa granted on the basis of having satisfied the secondary criteria of Subdivision 457.32. Prior to this amendment, paragraph 457.223(7A)(a) applied only to a person who held a Subclass 457 visa granted on the basis of having met the primary criteria of subclause 457.223(7).

The amendment enables a person who had previously satisfied the secondary criteria to have their further application for a Subclass 457 assessed against the primary time of decision criteria set out in subclause 457.223(7A).

The amendment also enables a person who does not hold a substantive visa, but whose last substantive visa was a Subclass 457 visa granted on the basis of having met the requirements of subclause 457.223(7) or Subdivision 457.32, to meet the requirements of subclause 457.223(7A).

This item is retrospective to 1 November 2001. The retrospectivity benefits a person who applied for a further Subclass 457 visa on or after 1 November 2001 on the basis of having satisfied the secondary time of decision criteria set out in Subdivision 457.32.

The retrospectivity also preserves the position of an applicant for a further Subclass 457 visa who at the time of decision is not the holder of a substantive visa of that kind.

The retrospectivity is not prejudicial to any person, and does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

Schedule 2 - Amendments

Item [1] - Regulation 1.03, definitions of Education and Education Minister

This item amends the definitions for the terms Education and Education Minister in regulation 1.03, to reflect Part 5 of the new Commonwealth administrative arrangements order made on 26 November 2001.

Item [2] - Regulation 1.03, definition of Employment Minister

This item amends the definition for the term Employment Minister in regulation 1.03, to reflect Part 6 of the new Commonwealth administrative arrangements order made on 26 November 2001.

Item [3] - Regulation 1.03, definition of Foreign Minister

This item amends the definition for the term Foreign Minister in regulation 1.03, to reflect the new Commonwealth administrative arrangements order made on 26 November 2001 and changes in the third Howard Ministry.

Item [4] - Regulation 1.03, definition of Immigration and Industry Minister

This item amends the definitions for the terms Immigration and Industry Minister in regulation 1.03, to reflect Parts 12 and 13 of the new Commonwealth administrative arrangements order made on 26 November 2001.

Item [5] - After paragraph 1.05A(2)(e)

This item inserts new paragraph 1.05A(2)(ea) in the Regulations to provide a reference to the "Refugee and Humanitarian (Class XB)" visa.

This amendment is a consequence of the insertion of new visa Class XB in the Regulations which was made by the Migration Amendment (Excision from the Migration Zone) (Consequential Provisions) Act 2001.

Item [6] - Subregulation 1.40(2)

The purpose of this item is to clarify what a "principal course" is.

New subregulation 1.40(2) makes it clear that where an applicant for a student visa is only going to undertake one course (that is a registered course), then that course is still considered to be a "principal course", despite the fact that only one course is to be undertaken.

New subregulation 1.40(3) sets out which course is a "principal course" when more than one course (both of which are registered courses) is to be undertaken by an applicant for a student visa.

New subregulation 1.40(4) makes it clear that the definition of "principal course" is applicable throughout:

• Division 1.8 of Part 1 of the Migration Regulations;

• any of the current student visa subclasses except for Subclass 576 (AusAID or Defence Sector), ie, Parts 570 to 575 (inclusive); and

• Schedule 5A to the Migration Regulations,

all of which relate to student visas.

Item [7] - Subregulation 1.42(1)

This item contains a technical amendment. This item omits the reference to study or training after the use of the defined term "principal course" in subregulation 1.42(1). This is because the definition of "principal course", in subregulation 1.40(2), itself refers to a course of study.

The reason for the omission of the reference to training is outlined in the explanation for item [3], below.

Item [8] - Subparagraph 1.42(5)(b)(ii)

This item contains a technical amendment. The amendment omits the reference to training after the reference to a course in subparagraph 1.42(5)(b)(ii).

The amendment is one of several intended to align references to a course of study with the various definitions of the term "course of study" in the student visa subclasses (see clauses 571.111, 572.111, 573.111, 574.111, 575.111 and 576.111 in Schedule 2 to the Migration Regulations).

The omission of the reference to training does not necessarily mean that training cannot be undertaken by the holder of a student visa. Clause 576.111 refers specifically to training in the definition of "course of study", whilst the other clauses refer to a full-time registered course of study (nb: clause 571.11 contains an additional limb in its definition of "course of study" in respect of secondary exchange students). It is possible for a registered course of study to include training as a registered part of the course.

Item [9] - Subregulation 1.44(1)

This item substitutes subregulation 1.44(1) with new subregulation 1.44(1).

The new subregulation makes it clear that the applicant has to provide evidence in accordance with the requirements set out in Schedule 5A:

• for the assessment level to which the applicant is subject; and

• in relation to the subclass of visa for which the applicant is seeking to satisfy the primary criteria.

Item [10] - Schedule 1, subparagraph 1222(3)(c)(i)

Item [11] - Schedule 1, subparagraph 1222(3)(c)(ii)

Item [12] - Schedule 1, subparagraph 1222(3)(c)(iii)

These items contain technical amendments. In effect, the amendments omit the references to training in subparagraphs 1222(3)(c)(i), (ii) and (iii) in Schedule 1 to the Migration Regulations.

The amendments form part of several such amendments which are intended to align references to a course of study with the various definitions of the term "course of study". These definitions appear in the student visa subclasses (see clauses 571.111, 572.111, 573.111, 574.111, 575.111 and 576.111 in Schedule 2 to the Migration Regulations).

The omission of the reference to training does not necessarily mean that training cannot be undertaken by the holder of a student visa. Clause 576.111 refers specifically to training in the definition of "course of study", whilst the other clauses mentioned above refer to a full-time registered course of study (nb: clause 571.11 contains an additional limb in its definition of "course of study" in respect of secondary exchange students). It is possible for a registered course of study to include training as a registered part of the course.

Subclass 570 (Independent ELICOS Sector) is not included in the above, as an ELICOS is an "English Language Intensive Course of Study" and is therefore a very specific type of course.

Item [13] - Schedule 2, clause 420.111, definition of Arts Minister

This item amends the definition for the term Arts Minister in clause 420.111, to reflect the new Commonwealth administrative arrangements order made on 26 November 2001 and changes in the third Howard Ministry.

Item [14] - Schedule 2, subclause 570.221(1)

Item [15] - Schedule 2, subparagraph 570.221(2)(b)(ii)

Item [16] - Schedule 2, subparagraph 570.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 570.231 in subclause 570.221(1) and subparagraphs 570.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 570.233. These amendments are consequential to the insertion of new clauses 570.232 and 570.233 by item [13].

Item [17] - Schedule 2, clause 570.223

This item is intended to:

• overcome potential problems in the new student visa subclasses (that is, Subclasses 570 to 576) that were identified by the Federal Court in relation to the old student visa subclass, which was repealed on 1 July 2001 (Subclass 560 (Student)); and

• provide a better basis for requiring an applicant (that is, one seeking to satisfy the primary criteria in order to be granted a student visa) to provide evidence under Schedule 5A to the Migration Regulations.

In the decision of Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299, Justice Gray stated that the criterion in subclause 560.224(1) was only that the applicant was a genuine applicant for entry and stay as a student. Therefore, in determining whether that criterion had been satisfied, a decision-maker only had to have regard to the matters referred to in paragraphs 560.224(1)(a) to (d). A failure to meet the requirements of one of those paragraphs would not necessarily result in an applicant not satisfying the criterion in subclause 560.224(1).

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

Under the new student visa regime, which commenced on 1 July 2001, it has been the intention that an applicant, in order to be considered as a genuine applicant for entry and stay as a student, must meet each of the requirements set out in Schedule 5A for their assessment level and subclass (see regulation 1.42 for how an assessment level for an applicant is determined). These requirements are regarded as key measures which go to the genuineness of a student.

In addition, there may be other factors that are not outlined in Schedule 5A that may indicate that an applicant is not a genuine applicant for entry and stay as a student. These other factors are often individual to the particular application being considered. These factors are:

• the stated intention of the applicant to comply with any conditions subject to which the visa is granted (that is, whether the applicant intends to comply in Australia with the conditions of his or her visa); and

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

In the new student visa subclasses (Subclasses 570-576), the potential problem with Subclass 560 (Student) is overcome by these Regulations. In addition, the intention regarding the requirements of Schedule 5A is clarified.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 570.223(2). New subclause 570.223(2) provides that the applicant will only meet the requirements of subclause 570.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 570.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [18] - Schedule 2, after clause 570.230

This item inserts new clause 570.230A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [19] - Schedule 2, after clause 570.231

This item inserts new clauses 570.232 and 570.233 after clause 570.231.

The purpose of new clause 570.232 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 570.

The purpose of new clause 570.233 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 570 more consistent with Subclasses 572 to 576 (inclusive).

The new requirement cannot be inserted into Schedule 5A, as Schedule 5A deals with the evidence that an applicant for a student visa must provide. As the new requirement does not require the applicant to specifically provide evidence, the new requirement is therefore contained in new clause 570.233.

Item [20] - Schedule 2, clause 571.111, after note 2

This item contains a technical amendment. A new note is inserted regarding the definition of a principal course.

Item [21] - Schedule 2, subclause 571.221(1)

Item [22] - Schedule 2, subparagraph 571.221(2)(b)(ii)

Item [23] - Schedule 2, subparagraph 571.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 571.231 in subclause 571.221(1) and subparagraphs 571.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 571.233. These amendments are consequential to the insertion of new clauses 571.232 and 571.233 by item [20].

Item [24] - Schedule 2, clause 571.223

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 571.223(2). New subclause 571.223(2) provides that the applicant will only meet the requirements of subclause 571.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 571.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [25] - Schedule 2, after clause 571.229

This item inserts new clause 571.229A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [26] - Schedule 2, after clause 571.231

This item inserts new clauses 571.232 and 571.233 after clause 571.231.

The purpose of new clause 571.232 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 571.

The purpose of new clause 571.233 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 571 more consistent with Subclasses 572 to 576 (inclusive).

Item [27] - Schedule 2, clause 572.111, note

This item contains a technical amendment. In effect, a new note is inserted regarding the definition of a principal course.

Item [28] - Schedule 2, subclause 572.221(1)

Item [29] - Schedule 2, subparagraph 572.221(2)(b)(ii)

Item [30] - Schedule 2, subparagraph 572.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 572.230 in subclause 572.221(1) and subparagraphs 572.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 572.232. These amendments are consequential to the insertion of new clauses 572.231 and 572.232 by item [27].

Item [31] - Schedule 2, clause 572.223

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 572.223(2). New subclause 572.223(2) provides that the applicant will only meet the requirements of subclause 572.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 572.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [32] - Schedule 2, after clause 572.229

This item inserts new clause 572.229A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [33] - Schedule 2, after clause 572.230

The purpose of new clause 572.231 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 572.

The purpose of new clause 572.232 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 572 less onerous. The requirement is contained in paragraph 5A411(1)(d) of Schedule 5A to the Migration Regulations, which is being omitted by these Regulations.

Item [34] - Schedule 2, clause 573.111, note

This item contains a technical amendment. In effect, a new note is inserted regarding the definition of a principal course.

Item [35] - Schedule 2, subclause 573.221(1)

Item [36] - Schedule 2, subparagraph 573.221(2)(b)(ii)

Item [37] - Schedule 2, subparagraph 573.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 573.230 in subclause 573.221(1) and subparagraphs 573.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 573.232. These amendments are consequential to the insertion of new clauses 573.231 and 573.232 by item [34].

Item [38] - Schedule 2, clause 573.223

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 573.223(2). New subclause 573.223(2) provides that the applicant will only meet the requirements of subclause 573.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 573.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [39] - Schedule 2, after clause 573.229

This item inserts new clause 573.229A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [40] - Schedule 2, after clause 573.230

The purpose of new clause 573.231 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 573.

The purpose of new clause 573.232 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 573 less onerous. The requirement is contained in paragraph 5A511(1)(d) of Schedule 5A to the Migration Regulations, which is being omitted by these Regulations.

Item [41] - Schedule 2, clause 574.111, note

This item contains a technical amendment. In effect, a new note is inserted regarding the definition of a principal course.

Item [42] - Schedule 2, subclause 574.221(1)

Item [43] - Schedule 2, subparagraph 574.221(2)(b)(ii)

Item [44] - Schedule 2, subparagraph 574.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 574.230 in subclause 574.221(1) and subparagraphs 574.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 574.232. These amendments are consequential to the insertion of new clauses 574.231 and 574.232 by item [41].

Item [45] - Schedule 2, clause 574.223

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 574.223(2). New subclause 574.223(2) provides that the applicant will only meet the requirements of subclause 574.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 574.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [46] - Schedule 2, after clause 574.229

This item inserts new clause 574.229A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [47] - Schedule 2, after clause 574.230

The purpose of new clause 574.231 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 574.

The purpose of new clause 574.232 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 574 less onerous. The requirement is contained in paragraph 5A611(1)(d) of Schedule 5A to the Migration Regulations, which is being omitted by these Regulations.

Item [48] - Schedule 2, clause 575.111, after note 2

This item contains a technical amendment. A new note is inserted regarding the definition of a principal course.

Item [49] - Schedule 2, subclause 575.221(1)

Item [50] - Schedule 2, subparagraph 575.221(2)(b)(ii)

Item [51] - Schedule 2, subparagraph 575.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 575.230 in subclause 575.221(1) and subparagraphs 575.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 575.232. These amendments are consequential to the insertion of new clauses 575.231 and 575.232 by item [48].

Item [52] - Schedule 2, clause 575.223

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 575.223(2). New subclause 575.223(2) provides that the applicant will only meet the requirements of subclause 575.223(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 575.223(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [53] - Schedule 2, after clause 575.229

This item inserts new clause 575.229A which ensures that if the applicant is an AusAID student or an AusAID recipient, the applicant has the support of the AusAID Minister for the grant of the visa.

Item [54] - Schedule 2, after clause 575.230

The purpose of new clause 575.231 is to more clearly provide a link between the principal course that has been gazetted under regulation 1.40A and Subclass 575.

The purpose of new clause 575.232 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 575 less onerous. The requirement is contained in paragraph 5A711(1)(d) of Schedule 5A to the Migration Regulations, which is being omitted by these Regulations.

Item [55] - Schedule 2, clause 576.111, definition of course of study or training

This item contains a technical amendment. In effect, the amendment omits the reference to training in the defined term "course of study or training" in clause 576.111. However, the new defined term "course of study" still includes a reference to training in its definition.

The amendment is one of several intended to align references to a course of study with the various definitions of the term "course of study" in the student visa subclasses (see clauses 571.111, 572.111, 573.111, 574.111, and 575.111 in Schedule 2 to the Migration Regulations).

Item [56] - Schedule 2, subclause 576.221(1)

Item [57] - Schedule 2, subparagraph 576.221(2)(b)(ii)

Item [58] - Schedule 2, subparagraph 576.221(3)(b)(ii)

These items contain technical amendments which replace the references to clause 576.229 in subclause 576.221(1) and subparagraphs 576.221(2)(b)(ii) and (3)(b)(ii) with references to new clause 576.230. These amendments are consequential to the insertion of new clause 576.230 by item [55].

Item [59] - Schedule 2, clause 576.222

This item is intended to:

Paragraphs 560.224(1)(a) to (d) related to:

• the financial ability of the applicant to undertake a course without contravening any condition of the visa relating to work;

• the applicant's comprehension of English for the purposes of the course;

• whether the applicant intended to comply with any conditions subject to which the visa was granted; and

• any other relevant matter.

Therefore, a failure to satisfy a decision-maker as to, for example, financial ability, would not necessarily be fatal to the visa application.

• any other relevant matter.

"Any other relevant matter" could include, but is not limited to:

• the situation in the applicant's home country which may induce the applicant not to return;

• the applicant's academic record;

• the applicant's links with Australia;

• whether the course will commence within a reasonable period of the applicant's arrival;

• whether the applicant's stated purpose for studying is consistent with the applicant's circumstances; or

• if a similar course is available in the applicant's home country, whether the applicant has sound reasons for studying in Australia.

The amendments in this item make it clear that the applicant will only be considered to be a genuine applicant for entry and stay as a student if he or she meets the requirements of subclause 576.222(2). New subclause 576.222(2) provides that the applicant will only meet the requirements of subclause 576.222(2) if he or she gives evidence in accordance with Schedule 5A in relation to English language proficiency, financial capacity and other requirements. In addition, under paragraph 576.222(2)(b), the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the matters set out in that paragraph.

Item [60] - Schedule 2, clause 576.227

Item [61] - Schedule 2, after clause 576.229

The purpose of new clause 576.230 is to make one of the requirements regarding financial capacity for applicants subject to assessment level 2 in Subclass 576 less onerous. The requirement is contained in paragraph 5A805(2)(d) of Schedule 5A to the Migration Regulations, which is being omitted by these Regulations.

Item [62] - Schedule 2, paragraph 576.312(4)(d)

These items contain technical amendments which are consequential to the amendment contained in item [49].

Item [63] - Schedule 4, Part 2, after item 4058

This item inserts new clauses 4058A to 4058G into Part 2 of Schedule 4 to the Migration Regulations. These clauses refer to the student visa subclasses and certain conditions. This item inserts these clauses for the purposes of paragraph 4013(2)(b) in Part 1 of Schedule 4.

Clause 4013 is a public interest criterion which must be satisfied by an applicant in relation to most temporary visas.

If a person is affected by a risk factor under subclause 4013(2), that person will not satisfy public interest criterion 4013 unless:

• their visa application is made more than 3 years after the cancellation of their student visa (see paragraph 4013(1)(a)); or

• the Minister is satisfied as to certain circumstances that justify the granting of the visa within 3 years after the cancellation.

The 3 year period mentioned above is known as an "exclusion period". Exclusion periods are intended to:

• demonstrate the seriousness with which breaches of migration or other Australian laws are viewed;

• deter people from breaching migration law; and

• maintain the integrity of migration policies.

Item [64] - Schedule 5A, clause 5A108

This item contains a technical amendment, consequential to the insertion of new subclause 5A108(2), below.

Item [65] - Schedule 5A, clause 5A108

This item inserts new subclause 5A108(2) into clause 5A108.

New subclause 5A108(2) provides an exception to the requirement in subclause 5A108(1), which requires that in most cases an applicant must provide a certificate of enrolment or evidence that the applicant has been offered a place in each course proposed to be undertaken under the visa.

The exception in subclause 5A108(2) is where the applicant makes his or her application in Australia and an educational institution requires the applicant to remain in Australia during the marking of the applicant's postgraduate thesis. In addition, the applicant must be the holder of a Subclass 560 or Subclass 562 visa (these are two of the three student visa subclasses that were repealed on 1 July 2001) or a Subclass 574 (Masters and Doctorate Sector) visa.

Therefore, for example, if the holder of a Subclass 574 (Masters and Doctorate Sector) visa ("the student") has to remain in Australia for another three months after the end of his or her course because of the marking of the student's postgraduate thesis, the student will therefore need to apply for another visa. As a consequence of these amendments, the student will be able to remain in Australia on a further Subclass 574 visa, provided that all other criteria for the visa are satisfied.

Item [66] - Schedule 5A, subclause 5A208(2), definition of funds from an acceptable source, paragraph (b)

Item [67] - Schedule 5A, subclause 5A305(2), definition of funds from an acceptable source, paragraph (b)

Item [69] - Schedule 5A, subclause 5A408(2), definition of funds from an acceptable source, paragraph (b)

Item [72] - Schedule 5A, subclause 5A505(2), definition of funds from an acceptable source, paragraph (b)

Item [75] - Schedule 5A, subclause 5A605(2), definition of funds from an acceptable source, paragraph (b)

Item [78] - Schedule 5A, subclause5A708(2), definition of funds from an acceptable source, paragraph (b)

These items contain amendments which are intended to clarify in paragraph (b) of the definition of "funds from an acceptable source" in subclauses 5A208(2), 5A305(2), 5A408(2), 5A505(2), 5A605(2) and 5A708(2) that a loan from a financial institution must be made to an "acceptable individual". "Acceptable individual" is defined in each of the aforementioned subclauses.

Item [68] - Schedule 5A, paragraph 5A309(b)

This item contains an amendment which is intended to fix an error. It has always been intended that an applicant, under paragraph 5A309(b), only be required to have successfully completed schooling to at least the year 6 level (or its equivalent). It is not intended that the applicant be required to have completed six years of secondary schooling.

Item [70] -Schedule 5A, paragraph 5A411(1)(c)

Item [73] - Schedule 5A, paragraph 5A511(1)(c)

Item [76] - Schedule 5A, paragraph 5A611(1)(c)

Item [79] - Schedule 5A, paragraph 5A711(1)(c)

Item [81] - Schedule 5A, paragraph 5A805(2)(c)

These items contain technical amendments that are consequential to the omission of paragraphs 5A411(1)(d), 5A511(1)(d), 5A611(1)(d), 5A711(1)(d) and 5A805(2)(d).

Item [71] - Schedule 5A, paragraph 5A411(1)(d)

Item [74] - Schedule 5A, paragraph 5A511(1)(d)

Item [77] - Schedule 5A, paragraph 5A611(1)(d)

Item [80] - Schedule 5A, paragraph 5A711(1)(d)

Item [82] - Schedule 5A, paragraph 5A805(2)(d)

These items contain amendments that are consequential to the amendments contained in items [20], [27], [34], [41], and [48] of these Regulations. As a new, less onerous requirement is being inserted into:

• Subclass 572 (Vocational Education and Training Sector);

• Subclass 573 (Higher Education Sector);

• Subclass 574 (Masters and Doctorate Sector);

• Subclass 575 (Non-Award Foundation/Other Sector); and

• Subclass 576 (AusAID or Defence Sector),

by virtue of the items mentioned above, paragraphs 5A411(1)(d), 5A511(1)(d), 5A611(1)(d), 5A711(1)(d) and 5A805(2)(d), which all contain the more strict requirement, are no longer necessary and are therefore being omitted.