MIGRATION AMENDMENT REGULATIONS 2002 (NO. 2) 2002 NO. 86

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 2) 2002 NO. 86

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 86

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

Migration Act 1958

Migration Amendment Regulations 2002 (No. 2)

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 powers listed in Attachment A.

The purpose of the Regulations is to amend provisions relating to the application for and grant of certain visas, waive or expand certain conditions, renew provisions prescribing the People's Republic of China (PRC) as a safe third country, amend the operation of certain aspects of the merits review process for visa applicants, exempt certain decisions from the operation of the privative clause in section 474 of the Act, and make various technical amendments.

The Regulations effect changes to the Migration Regulations 1994 to:

- correct anomalies in the Subclass 117 (Orphan Relative) offshore visa and the Subclass 837 (Orphan Relative) onshore visa. In particular, the amendments: change the amount of the second instalment of the visa application charge to "nil"; require an applicant for an onshore orphan relative visa to be sponsored rather than nominated; and allow an applicant for an orphan relative visa to satisfy the criterion that they must be an orphan relative, despite the fact that they have been adopted by a specific relative;

- enable the Minister to waive condition 8534 (a "no further stay" condition that is imposed on certain student visas) in certain circumstances. Specifically, the amendments allow this to occur where the student visa holder with the condition imposed goes on to hold a Subclass 497 (Graduate-Skilled) visa - or a bridging visa associated with the application for the Subclass 497 visa and wishes to be able to apply for a Skilled - Independent Overseas Student (Residence)(Class DD) or a Skilled - Australian-sponsored Overseas Student (Residence)(Class DE) visa (both of which are permanent visas);

- remove the skill matching fee of $155 that is payable for the purposes of an application for a Skill Matching (Migrant) (Class BR) visa. The removal of this fee is intended to attract more applicants to the Skill Matching (Migrant) (Class BR) visa. As a consequence, there will also be increasing numbers of persons on the Skill Matching Database;

- make Form 48S the relevant form for Short Stay Sponsored (Visitor) (Class UL) visa applications and to therefore distinguish an application for a Short Stay Sponsored (Visitor) (Class UL) visa from an application for a Long Stay (Visitor) (Class TN) visa or a Short Stay (Visitor) (Class TR) visa, which are currently all made on Form 48R;

- repeal the Olympic (Support) (Temporary) (Class UI) visa class because it is no longer required since the close of the Sydney 2000 Olympic Games;

- provide that an application for a Graduate - Skilled (Temporary) (Class UQ) visa may be made by delivery by courier service;

- impose condition 8515 (the visa holder must not marry before entering Australia) on visa subclasses 105, 106, 126 and 135. This is a technical amendment made to give proper effect to the policy intention;

- require - where an applicant is relying on a degree, diploma or trade qualification to be exempt from the work experience requirement in subclasses 134, 136, 137, 138 and 139 - the instruction for the degree, diploma or trade qualification to be conducted entirely in English;

- ensure that illegal work experience in Australia cannot be used to satisfy the requirement that the applicant has been employed in a skilled occupation for a certain period;

- prescribe the PRC as a safe third country in relation to certain Vietnamese refugees who settled in the PRC but who subsequently entered Australia without lawful authority;

- prescribe that a person has a prescribed connection with the PRC if the person, or a parent of the person, resided in the PRC at any time before the person entered Australia;

- replace the requirement for an applicant to be nominated in relation to offshore applications for "Family Visa Stream" subclasses with a requirement that the applicant instead be sponsored, thereby aligning the offshore "Family Visa Stream" with the onshore "Family Visa Stream" subclasses. These amendments require a sponsor of an onshore applicant for a "Family Visa Stream" subclass to provide an undertaking of support in relation to the applicant. In addition, the amendments require the sponsor to be at least 18 years old;

- require that all visa applications made on an approved form must include the residential address of the applicant in order to be a valid visa application;

- require an applicant for approval as a business sponsor to be actively operating a business in Australia;

- require the Minister to satisfy himself or herself that nothing adverse is known to Department of Immigration and Multicultural and Indigenous Affairs about the business background of office holders of entities who are applicants for approval as business sponsors;

- remove the requirement in Subclass 457 (Business (Long Stay)) that the holder of a student visa must have successfully completed an Associate Diploma level course or higher in Australia;

- expand the scope of condition 8107 to restrict the holder of a visa from:

• ceasing to be employed by the employer, or ceasing the activity, in relation to which the visa was granted;

• working in a position or occupation, or engaging in an activity, inconsistent with the position or occupation, or the activity, in relation to which the visa was granted;

• working for another person or on the holder's own account while undertaking the employment in relation to which the visa is granted; or

• working for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted;

- replace references to "associate diploma" with "diploma" in provisions relating to an Educational (Temporary) (Class TH) visa, a Medical Practitioner (Temporary) (Class UE) visa, or visas granted under the Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) and Labour Agreement Scheme;

- remove obsolete references to "assisted student" in provisions relating to visas granted under the ENS, RSMS and Labour Agreement Scheme;

- ensure references to "diploma" refer to the relevant definition of "diploma" in subregulation 2.26A(6);

- require (where a prospective marriage visa application has been refused by the Department and the applicant gets married during merits review of that refusal) the MRT to remit the application for reconsideration with a direction that the application also be considered an application for a Partner (Migrant) (Class BC) and Partner (Provisional) (Class UF) visa;

- provide flexibility in relation to when a Subclass 456 - Business (Short Stay) visa is in effect by allowing the Minister to determine:

• the number of occasions the visa holder can travel to, and enter, Australia;

• the visa holder's travel validity date, up to a maximum period of 10 years from the date of the grant of the visa; and

• the visa holder's period of stay in Australia, up to a maximum period of 3 months after each entry;

- amend the definition of "degree" in subregulation 2.26A(6) to ensure that only degrees satisfying the Australian Qualifications Framework are provided for by this term;

- provide certainty for relevant assessing authorities in setting the standards they apply when assessing skills for migration purposes. The Regulations clarify that relevant assessing authorities must set the standards to be applied when assessing a person's skills for migration purposes;

- enable student visa applications from students in specified foreign countries to make their applications based on where they are physically located;

- enable applicants for Subclass 571 (Schools Sector) visas aged over 18 years and requiring a visa to complete their Year 12 studies to be exempt from the requirements that they be aged less than 18 years and that their course is more than 16 months in duration;

- clarify certain student visa regulations and ensure that the original policy intention behind these regulations is achieved relating to guardianship and carer arrangements;

- clarify certain student visa regulation concerning the financial capacity requirements for students in assessment levels 3, 4 and 5;

- ensure the following applicants spend at least 2 years outside Australia before being eligible to apply for a Skilled - Independent Overseas Student (Residence) (Class DD), Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) or Graduate - Skilled (Temporary) (Class UQ) visa:

• an applicant who has held a Subclass 576 (AusAID or Defence Sector) visa; and

• a member of the family unit of a person who is, or has been, a holder of an AusAID, Defence or government sponsored student visa;

- specify certain decisions as being exempt from the operation of the privative clause provisions under section 474 of the Act;

- specify where an applicant for a Business Skills (Migrant) (Class AD) visa must be usually resident in order to make a valid application, as well as where an application must be made;

- ensure that the grant of a Subclass 773, 956, 976 or 977 visa will not cease a more beneficial visa held by the applicant at the time of the Subclass 773, 956, 976 or 977 visa grant;

- specify that an applicant for a Subclass 445 (Dependent Child) visa be sponsored by the nominator or sponsor of the applicant's parent;

- permit the applicant's parent to sponsor a Subclass 445 (Dependent Child) applicant where the nominator or sponsor of his or her parent has died or where the relationship between the parent and his or her nominator or sponsor has ceased in certain circumstances;

- specify that a Subclass 445 (Dependent Child) visa can only be granted to an applicant who continues to be the dependent child of a person who holds a visa of a specified subclass;

- insert secondary criteria into Part 445 of Schedule 2 to enable applications by dependent children of Subclass 445 (Dependent Child) visa applicants;

- limit the circumstances in which a step-parent can sponsor his or her step-child under visa Subclasses 101 (Child) and 802 (Child);

- make technical amendments to the Extended Eligibility (Temporary) (Class TK) visa to give proper effect to the policy intention;

- remove the reference to form 147 as a valid application form for Working Holiday (Temporary) (Class TZ) visa applicants;

- remove the combined application option for members of the family unit of Working Holiday (Temporary) (Class TZ) visa applicants so that all applicants must satisfy the primary criteria for grant of the visa in their own right;

- allow Working Holiday (Temporary) (Class TZ) visa applicants to lodge their applications via the Internet;

- allow these applications to be processed electronically by means of an automated computer decision-making program;

- enable certain applicants to be granted a further Subclass 417 (Working Holiday) visa without meeting the prescribed visa criteria and without paying a visa application charge. This is because a certain group of Subclass 417 visa holders were not allowed the benefit of the travel facility that was intended to apply to their visas. These amendments rectify that situation; and

- ensure that all holders of a Subclass 417 (Working Holiday) visa, provided they enter Australia within twelve months of the grant of the visa, can stay in, leave and re-enter Australia on multiple occasions, during the twelve month period from their first entry to Australia. This amendment rectifies the problem mentioned above in relation to the grant of Subclass 417 visas from 1 July 2002.

Details of the Regulations are set out in Attachment B.

Regulations 1 to 4 and Schedule 1 commence on gazettal. This is because there has been an error in public information which says that the second instalment of the visa application charge does not apply to applicants for a Child (Migrant) (Class AH) visa. The amendments give effect to the intended policy position that such applicants should not be liable to pay this instalment. Therefore, the amendment commences on gazettal in order to implement this beneficial change at the earliest possible time.

The remainder of the Regulations (that is, Regulation 5 and Schedule 2) commence on 1 July 2002. Amendments to the Migration Regulations are made 3 times per year. These changes constitute the "July Round". Having fixed commencement dates for each of the 3 "Rounds" minimises the impact on clients and staff.

Attachment A

Details of other relevant regulation-making powers under the Act are as follows:

- subsection 5(2) provides that evidence of English language proficiency is prescribed by the Regulations;

- subsection 29(2) provides that a visa to travel to, enter and remain in Australia may be one to travel to and enter Australia during a prescribed period or to remain in Australia during a prescribed period;

- subsection 31(1) provides that the Regulations may prescribe classes of visas;

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

- section 41 provides for conditions on visas:

• subsection 41(1) provides that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

• subsection 41(2A) provides that the Minister may, in prescribed circumstances, by writing, waive a condition of the kind described in paragraph 2(a) to which a particular visa is subject under regulations made for the purposes of that paragraph;

• under paragraph 41(2)(a), the Regulations may provide that a visa of a specified class is subject to a "no further stay" condition despite anything else in the Act;

• paragraph 41(2)(b) provides that the Regulations may provide that a visa or visas of a specified class are subject to a condition imposing restrictions about the work that may be done in Australia by the holder, which may be a restriction on doing any work, work other than specified work, or work of a specified kind; and

• subsection 41(3) provides that the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations;

- section 45C provides that the Regulations may provide that a visa application charge is payable in instalments, specify how those instalments are to be calculated and specify when instalments are payable;

- section 46 deals with when an application for a visa is a valid application. In particular:

• paragraph 46(2)(a) provides that an application for a visa is a valid application if it is an application for a visa prescribed for the purposes of subsection 46(2);

• paragraph 46(2)(b) provides that an application for a visa is a valid application if, under the Regulations, the application is taken to have been validly made;

• subsection 46(3) 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;

• paragraph 46(4)(a) provides that the Regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application;

• paragraph 46(4)(b) provides that the Regulations may prescribe how an application for a visa of a specified class must be made;

• paragraph 46(4)(c) provides that the Regulations may prescribe where an application for a visa of a specified class must be made; and

• paragraph 46(4)(d) provides that the Regulations may prescribe where an applicant must be when an application for a visa of a specified class is made;

- subsection 68(2) provides that a visa may provide that it comes into effect at the beginning of a day, being a day after its grant as specified in the visa or when an event, specified in the visa, happens;

- subsection 91D(1) provides that a country is a safe third country in relation to a non-citizen if the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member, and the non-citizen has a prescribed connection with the country;

- subsection 93(1) provides that the Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant;

- section 337 provides that the Regulations set out the meaning of the terms Australian permanent resident, nominated and sponsored;

- paragraph 349(2)(c) provides that the Migration Review Tribunal may, if the decision relates to a prescribed matter, remit the matter for reconsideration in accordance with such directions as are permitted by the Regulations; and

- subsection 474(5) provides that the Regulations may specify that a decision, or a decision included in a class of decisions, under the Act, or under regulations or another instrument under the Act, is not a privative clause decision.

Attachment B

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 2).

Regulation 2 - Commencement

This regulation provides that these Regulations commence as follows:

• regulations 1 to 4 and Schedule 1 - on gazettal;

• regulation 5 and Schedule 2 - on 1 July 2002.

Regulation 3 - Amendment of Migration Regulations 1994

Regulation 3 provides that Schedules 1 and 2 to these Regulations amend the Migration Regulations 1994 (the Migration Regulations).

Regulation 4 - Transitional - amendment made by Schedule 1

This regulation provides that the amendment made by Schedule 1 to these Regulations applies in relation to an application for a visa:

• made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before the date of the commencement of Schedule 1; or

• made on or after the date of the commencement of Schedule 1.

This amendment removes the second instalment of the visa application charge from paragraph 1108(2)(b). Therefore, for example, if a decision on an application for a Child (Migrant) (Class AH) visa had not been made by the date on which these Regulations are notified in the gazette, then the applicant would be no longer required to pay the visa application charge of $960.

Regulation 5 - Transitional - amendments made by Schedule 2

Subregulation 5(1) provides that the amendments made by items 2127 and 2128 of Schedule 2 apply in relation to an assessment of a person's skills made by a relevant assessing authority on or after 1 July 2002. These amendments cannot affect "pipeline" applicants - that is, applicants who made an application prior to 1 July 2002 but in respect of whom the application has not yet been finally determined as at 1 July 2002 - because the process of obtaining a skills assessment is a pre-application requirement.

Subregulation 5(2) provides that the amendments made by Schedule 2 that are listed in that subregulation apply in relation to an application for a visa made on or after 1 July 2002. Therefore, these amendments do not apply to an application for a visa made prior to 1 July 2002 where that application has not been finally determined as at 1 July 2002.

Subregulation 5(3) provides that the amendments made by items 2107 to 2109 of Schedule 2 apply in relation to an application for approval made on or after 1 July 2002.

Subregulation 5(4) provides that the amendment made by item 2133 of Schedule 2 applies in relation to a decision, or a decision included in a class of decisions, made on or after 1 July 2002 under a provision of the Act.

Subregulation 5(5) provides that the amendments made by Schedule 2 that are listed in that subregulation 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 July 2002; or

• made on or after 1 July 2002.

These amendments therefore apply not only in relation to new applications for visas made on or after 1 July 2002, but also to applications for visas made prior to 1 July 2002 that are not finally determined as at 1 July 2002.

For example, the amendment made by item 2202 removes the second instalment of the visa application charge from paragraph 1108A(2)(b). Therefore, if a decision on an application for a Child (Residence) (Class BT) visa had not been made by 1 July 2002, then the applicant would be no longer required to pay the second instalment of the visa application charge of $1,005.

Subregulation 5(6) provides that the amendments made by items 2123 and 2124 of Schedule 2 apply in relation to a review application:

• made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2002; or

• made on or after 1 July 2002.

Schedule 1 - Amendment commencing on gazettal

Item [1101] - Schedule 1, paragraph 1108(2)(b)

This item substitutes paragraph 1108(2)(b) with new paragraph 1108(2)(b) to provide that there is no second instalment of the visa application charge payable before the grant of a Child (Migrant) (Class AH) visa to an applicant.

The purpose of this amendment is to make all the subclasses within the Child (Migrant) (Class AH) and Child (Residence) (Class BT) visa classes consistent, so that none impose a second instalment of the visa application charge.

Whilst orphan relative applicants have been entitled to a concession on the first instalment of the visa application charge, it was not equitable that they (and their siblings) were charged the second instalment of the visa application charge, particularly as this is not a requirement in the other subclasses in the child visa classes.

Schedule 2 - Amendments commencing on 1 July 2002

Part 1 - Amendment of Parts 1, 2, 4 and 5

Item [2101] - Regulation 1.03, definition of assisted student

This item omits the definition for the term "assisted student" in regulation 1.03, to reflect the fact that this category of student no longer exists.

An "assisted student" is a student under the Subsidised Overseas Students Program, which is administered by the Department of Education, Science and Training. This Program was phased out in 1989.

Item [2102] - Paragraph 1.14(c)

This item substitutes paragraph 1.14(c) with new paragraph 1.14(c).

Regulation 1.14 includes the meaning of "orphan relative" for the purposes of determining whether an applicant is eligible for a Subclass 117 (Orphan Relative) visa or a Subclass 837 (Orphan Relative) visa.

The purpose of this amendment is to ensure that a person will fall within the meaning of "orphan relative" unless there is a compelling reason to believe that the grant of a Subclass 117 or 837 visa would not be in the best interests of the applicant.

The revised wording of paragraph 1.14(c) is also more consistent with public interest criterion 4018 in Schedule 4 to the Migration Regulations, and is a more reasonable test for delegates of the Minister to assess.

Item [2103] - Paragraph 1.20(2)(a)

This item amends paragraph 1.20(2)(a) to add a Partner (Residence) (Class BS) visa to the visas that are excluded from the operation of paragraph 1.20(2)(a).

Regulation 1.20 outlines the obligations of a sponsor in relation to an application for a visa.

A reference to a Partner (Residence) (Class BS) visa needs to be added to regulation 1.20 because these Regulations make amendments to require an applicant for this visa to be sponsored rather than nominated.

However, it is more appropriate for the Partner (Residence) (Class BS) visa to be added in paragraph 1.20(2)(c), rather than paragraph 1.20(2)(a). This is because concurrent applications are lodged for a Partner (Residence) (Class BS) and a Partner (Temporary) (Class UK) visa.

Therefore, provision for a Partner (Residence) (Class BS) visa is expressly excluded from the operation of paragraph 1.20(2)(a).

Item [2104] - Paragraph 1.20(2)(b)

This item amends paragraph 1.20(2)(b) to add Partner (Temporary) (Class UK) and Extended Eligibility (Temporary) (Class TK) visas to the visas that are excluded from the operation of paragraph 1.20(2)(b).

Regulation 1.20 outlines the obligations of a sponsor in relation to an application for a visa.

A reference to a Partner (Temporary) (Class UK) visa needs to be added to regulation 1.20 because these Regulations make amendments to require an applicant for this visa to be sponsored rather than nominated.

However, it is more appropriate for the Partner (Temporary) (Class UK) visa to be added in paragraph 1.20(2)(c), rather than paragraph 1.20(2)(b). This is because concurrent applications are lodged for a Partner (Residence) (Class BS) and a Partner (Temporary) (Class UK) visa.

Therefore, provision for a Partner (Temporary) (Class UK) visa is expressly excluded from the operation of paragraph 1.20(2)(b).

Provision for an Extended Eligibility (Temporary) (Class TK) visa is made in new paragraph 1.20(2)(e) inserted by these Regulations.

Item [2105] - Paragraph 1.20(2)(c)

This item amends paragraph 1.20(2)(c) to include a reference to a concurrent application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

Regulation 1.20 outlines the obligations of a sponsor in relation to an application for a visa.

Since the provisions for a Partner (Residence) (Class BS) visa and a Partner (Temporary) (Class UK) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to include a Partner (Residence) (Class BS) visa and a Partner (Temporary) (Class UK) visa in the sponsorship provisions in regulation 1.20.

Having different requirements for onshore visa applications (requiring 'nomination' of the visa applicant) and offshore visa applications (requiring 'sponsorship' of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore.

Since the Partner (Residence) (Class BS) visa and Partner (Temporary) (Class UK) visa are visas applied for onshore, this item also amends paragraph 1.20(2)(c) so that it provides for applicants in Australia as well as outside Australia.

Item [2105A] - Paragraph 1.20(2)(d)

This item contains a technical amendment.

Item [2106] - After paragraph 1.20(2)(d)

This item inserts paragraph 1.20(2)(e) in Part 1 of the Migration Regulations.

Paragraph 1.20(2)(e) provides that if the application is for an Extended Eligibility (Temporary) (Class TK) visa the sponsor must assist the applicant, financially and in respect of accommodation, during the period of 2 years immediately following the applicant's entry into Australia as the holder of the visa.

Item [2107] - Paragraph 1.20D(2)(a)

This item inserts a requirement into paragraph 1.20D(2)(a) of the Migration Regulations that an applicant for approval as a business sponsor be actively operating a business in Australia.

Subregulation 1.20D(2) sets out the matters that applicants for business sponsorship must meet in order to be approved by the Minister as a business sponsor.

Paragraph 1.20D(2)(a) currently requires that an applicant for approval is lawfully operating a business in Australia in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to the matters set out in the paragraph.

The purpose of the amendment is to require that in addition to lawfully operating a business in Australia, the applicant for approval as a business sponsor is actively operating a business in Australia. The amendment is intended to enable the Minister to reject an application for approval as a business sponsor where the applicant is a corporation that is not also actively engaged in business operations in Australia.

Item [2108] - Paragraph 1.20D(2)(d)

This item substitutes paragraph 1.20D(2)(d) with a new paragraph requiring the Minister to be satisfied that nothing adverse is known to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) about:

• the business background of an applicant for approval as a business sponsor; or

• any officer of any of the entities that constitute an applicant for approval; or

• any individual who is a member of a partnership that is one of the entities constituting the applicant for approval.

Currently paragraph 1.20D(2)(d) requires only that the Minister be satisfied that nothing adverse is known to DIMIA about the business background of an applicant for approval, which may be an individual, a corporation, or other commercial entity.

The purpose of the amendment is to extend the requirement on the Minister to be satisfied that nothing adverse is known to DIMIA about the business background of individuals who are not themselves applicants for approval, but who are officers of the entity or entities that are the applicants for approval.

The amendment seeks to enhance the integrity of the business sponsorship process by preventing individuals who have an adverse business record or immigration compliance record, or who have a history of breaching sponsorship obligations with previous sponsorships, from evading recognition by applying for approval as a business sponsor through new business entities.

Item [2109] - After subregulation 1.20D(2)

This item inserts new subregulation 1.20D(2A) into the Migration Regulations, providing a definition of the word 'officer' for subparagraph 1.20D(2)(d)(ii) inserted by these Regulations.

Subregulation 1.20D(2A) provides that an 'officer' for subparagraph 1.20D(2)(d)(ii) means, for a corporation, an officer of the corporation within the meaning of the Corporations Act 2001.

Item [2110] - Regulation 1.20J, heading

This item amends the heading to regulation 1.20J by omitting the reference to nominations.

This is consequential to amendments made by these Regulations to require 'sponsorship' of all onshore "family visa stream" applicants rather than 'nomination'.

Item [2111] - Paragraph 1.20J(1)(b)

Item [2112] - Paragraph 1.20J(1)(b)

This item amends the heading to regulation 1.20J by omitting the reference to nominations.

These amendments are consequential to amendments made by these Regulations to require 'sponsorship' of all onshore "family visa stream" applicants rather than 'nomination'.

Item [2118] - Subregulation 1.20K(2)

This item omits subregulation 1.20K(2) in Part 1 of the Migration Regulations.

As new subparagraph 1.20K(1) amended by these Regulations refers to Subclass 835 visas, subparagraph 1.20K(2) is not necessary.

Item [2119] - After subregulation 2.05(4)

This item inserts new subregulation 2.05(5) after subregulation 2.05(4) in Part 2 of the Migration Regulations to provide the circumstances in which the Minister may waive condition 8534 in relation to a visa.

Condition 8534 is imposed on certain student visas. It prevents a visa holder from being granted a further substantive visa while he or she remains in Australia, with the exception of protection visas, student visas made on form 157P or 157P (Internet), and Subclass 497 (Graduate - Skilled) visas (see subsection 5(1) of the Act for the definition of "substantive visa").

New subregulation 2.05(5) allows the Minister to waive condition 8534 in relation to a visa where the holder of the visa:

• has, after holding a student visa to which condition 8534 applies, been granted:

- a Subclass 497(Graduate - Skilled) visa; or

- a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with the Subclass 497 (Graduate - Skilled) visa application; and

• has not, after holding a student visa to which condition 8534 applies, been granted a protection visa.

This amendment enables the holder of the Subclass 497 or Bridging visa mentioned above to be able to apply for a substantive visa while in Australia, that is, without having to leave Australia. However, the amendment in these Regulations inserting new regulation 2.07AG only allows the Bridging or Subclass 497 visa holder to make certain valid applications for visas.

New regulation 2.07AG provides that in the above situation, a person who has had condition 8534 waived may only, whilst still in Australia, apply for a

Skilled - Independent Overseas Student (Residence) (Class DD) or a

Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa.

The reason why the holder of a visa with condition 8534 imposed can apply for a substantive visa after leaving Australia without having the condition waived is set out in paragraph 42(2)(a) of the Act. This paragraph specifies that when such a condition is imposed, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (with some exceptions) while he or she remains in Australia. Therefore, upon leaving Australia, the condition no longer has effect.

Consequently, the purpose of new subregulation 2.05(4) is to ensure that a person may - whilst the holder of a Subclass 497 visa or a Subclass 010 or Subclass 020 visa associated with the Subclass 497 visa - apply for a Class DD or Class DE visa whilst having not left Australia since condition 8534 was imposed.

This upholds the original policy intention that the Subclass 497 (Skilled - Graduate) visa should be a temporary visa maintaining a student's lawful status in Australia until he or she can obtain the relevant documentation necessary for making a valid application for the permanent Class DD or Class DE visa.

Item [2120] - After subregulation 2.07(3)

This item inserts new subregulation 2.07(4) to expressly provide that all visa applicants, who make an application on an approved form, must provide a residential address in order to make a valid visa application.

The residential address is required in order for the Department to conduct meaningful bona fide checks and purse enforcement obligations where necessary.

New paragraph 2.07(4)(b) provides that the address may be provided in a separate document. This is intended to be used only in specific situations where it is necessary to keep the address confidential for security reasons. An example might be where it is necessary to keep the address of a women's shelter secure and confidential.

Item [2121] - Regulation 2.07AD

This item repeals regulation 2.07AD of Part 2 to the Migration Regulations.

Regulation 2.07AD and item 1214B set out the requirements for making a valid application for an Olympic (Support) (Temporary) (Class UI) visa. Part 499 of Schedule 2 to the Migration Regulations sets out the criteria that must be satisfied for the grant of a Subclass 499 (Olympic (Support)) visa.

The Olympic (Support) (Temporary) (Class UI) visa was introduced on 1 July 1999 specifically for the purposes of the Sydney 2000 Olympic Games.

This visa class has not been used since the closure of the Sydney 2000 Olympic Games, and is no longer required.

Item 1214B of Schedule 1 and Part 499 of Schedule 2 to the Migration Regulations are also repealed by these Regulations.

Item [2122] - After regulation 2.07AF

This item is consequential to the amendment inserting new subregulation 2.05(5).

This item inserts new regulation 2.07AG into Part 2 of the Migration Regulations to limit the visa applications that are valid for the purposes of section 46 of the Act.

New regulation 2.07AG provides that an application for a substantive visa by a person who holds a Subclass 497 (Graduate - Skilled) visa, or a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa associated with the Subclass 497 (Graduate - Skilled) visa application, and who is a person for whom condition 8534 has been waived (under new subregulation 2.05(5)), is a valid application only if the application is for a Skilled - Independent Overseas Student (Residence) (Class DD) or a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa.

This amendment is consequential to the insertion by these Regulations of new subregulation 2.05(5), which enables the holder of a Subclass 497 or Bridging visa mentioned above to apply for a substantive visa while in Australia.

Therefore, under new subregulation 2.07AG(1), an application for a substantive visa made by a person mentioned in new subregulation 2.07AG(2), is a valid application only if it is for a Class DD or DE visa. The person mentioned in subregulation 2.07AG(2) directly relates to the holder of the visa mentioned in new subregulation 2.05(5).

The purpose of this amendment is to direct the holder of, or applicant for, a Subclass 497 (Graduate - Skilled) visa who is affected by condition 8534 to a Class DD or Class DE visa and ensure that, once condition 8534 has been waived, the holder cannot apply for any other onshore visa.

Item [2123] - Paragraph 2.08E(2)(d)

This item amends paragraph 2.08E(2)(d) to provide that an applicant for a Prospective Marriage (Temporary) (Class TO) visa is taken also to have applied for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.

Subregulation 2.08E(2) provides that if an applicant for a Subclass 300 (Prospective Marriage) (Temporary) visa marries the person specified as the applicant's prospective spouse before the application for a Subclass 300 visa is decided, the applicant is deemed to also have applied for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.

Item [2124] - After subregulation 2.08E(2)

This item inserts new subregulations 2.08E(2A) and (2B) into regulation 2.08E in Part 2 of the Migration Regulations.

The purpose of these amendments is to require (where a prospective marriage visa application has been refused by the Department and the applicant gets married during merits review of that refusal) the MRT to remit the application for reconsideration with a direction that the application also be considered an application for a Partner (Migrant) (Class BC) and Partner (Provisional) (Class UF) visa.

This allows the Department to assess the now married applicant for the 'spouse' visas rather than the 'prospective marriage' visas.

Item [2125] - Regulation 2.12A

This item substitutes regulation 2.12A of the Migration Regulations.

New subregulation 2.12A(1) prescribes for paragraph 91D(1)(a) of the Act, that the People's Republic of China (PRC) is a safe third country in relation to certain Vietnamese refugees who settled in the PRC, who are covered by the agreement between Australia and the PRC, and who subsequently entered Australian unlawfully on or after 1 January 1996.

Under subsection 91(4) of the Act, a regulation made for the purposes of paragraph 91D(l)(a) of the Act ceases to be in force at the end of 2 years after the regulation commences. Under this provision, current regulation 2.12A ceases to be in force at the end of 30 June 2002.

New subregulations 2.12A(1) and (2) mirror the omitted subregulations 2.12A(1) and (2).

New paragraph 2.12A(3)(a) refers to the up-dated agreement between Australia and the PRC constituted by the Memorandum of Understanding set out in Schedule 11 to the Regulations, together with the exchange of letters between Australia and the PRC dated 4 April 2002 and 5 April 2002, the text of which is set out in Schedule 12 of the Regulations.

New paragraph 2.12A(3)(b) mirrors the omitted paragraph 2.12A(3)(b).

Item [2126] - Subregulation 2.26A(6), definition of degree

This item inserts a reference to the term "Australian Qualifications Framework" (AQF) into the definition of "degree" in subregulation 2.26A(6). This is similar to the definitions for the terms "diploma" and "trade qualification" in subregulation 2.26A(6), which also contain references to AQF.

Some universities award qualifications that do not satisfy AQF requirements. This has caused problems for relevant skills assessing authorities and the National Office of Overseas Skills Recognition (NOOSR). As a consequence, this item amends the definition of "degree" in subregulation 2.26A(6) to ensure that only degrees satisfying the AQF level are covered by the term.

The terms relating to educational qualifications in subregulation 2.26A(6), notably "degree", "diploma" and "trade qualification", will be more consistent. The amendment is intended to clarify any uncertainty that may exist regarding which qualifications satisfy the definition of "degree".

Item [2127] - Regulation 2.26B

This item makes a consequential technical amendment to regulation 2.26B, to the effect that it is now subregulation 2.26B(1).

Item [2128] - Regulation 2.26B

This item inserts new subregulation 2.26B(2) which provides that the standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.

The purpose of this amendment is to clarify that relevant assessing authorities set the standards to be applied when assessing a person's skills for migration purposes.

Concerns have been expressed regarding the lack of provisions in the Regulations concerning the standards that relevant assessing authorities are to apply when assessing a person's skills. Indeed, some relevant assessing bodies have been under pressure to apply the Australian Standards Classifications of Occupations (ASCO) code when making skills assessments.

Justice Emmett, in the decision of Silviera v Australian Institute of Management [2001] FCA 803 (27 June 2001), made specific comments about the lack of provisions in the Regulations regarding what standard relevant assessing bodies are to apply when making skills assessments. In the absence of such provisions, Emmett J was of the view that the ASCO code should be used. This is despite the fact that the ASCO code is primarily a tool for statistical purposes and was only intended to be applied to skills assessments when no other guide was available.

The amendments made by this item seek to resolve these concerns by providing that relevant assessing authorities for a skilled occupation establish the standards against which a person's skills, for migration purposes, are to be assessed.

Thus, the purpose of these amendments is not to "empower" the relevant assessing authorities with the ability to set their own standards, rather it is to "clarify" this fact - that relevant assessing authorities assess a person's skills against the standards set by the relevant assessing authority for the skilled occupation.

Item [2129] - Regulation 2.27C

This item substitutes regulation 2.27C in Part 2 of the Migration Regulations.

New regulation 2.27C provides that in determining whether an applicant satisfies a criterion that the 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, and complied with the conditions of that visa.

This is a technical amendment giving proper effect to the original policy intention of the provision.

Item [2130] - Paragraph 4.15(1)(b)

This item amends paragraph 4.15(1)(b) and is consequential to the amendment in these Regulations inserting subregulation 4.15(4).

Paragraph 4.15(1)(b) now provides that, subject to subregulation 4.15(4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.

New subregulation 4.15(4), inserted by these Regulations, provides that if the MRT remits an application for a visa to the Minister for reconsideration in accordance with subregulation 2.08E(2B), the MRT cannot make a direction in relation to that application. The only exception is the direction specified in subregulation 2.08E(2B), that the application be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.

Item [2131] - After subregulation 4.15(3)

This item inserts new subregulation 4.15(4) in Part 4 of the Migration Regulations.

Subregulation 4.15(4) provides that if the MRT remits an application for a visa to the Minister for reconsideration in accordance with subregulation 2.08E(2B), the MRT cannot make a direction in relation to that application. The only exception is the direction specified in subregulation 2.08E(2B), that the application be taken also to be an application for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa.

The intention is to avoid a situation where the MRT makes a finding or direction on the prospective marriage visa even though the applicant is now married and the more appropriate visa for processing is the Partner (Migrant) (Class BC) visa or the Partner (Provisional) (Class UF) visa.

Item [2132] - Paragraph 5.19(4)(c)

Paragraph 5.19(4)(c) provides that unless the appointment is exceptional, the person who is appointed to perform the work must have a diploma (within the meaning of subregulation 2.26(5)) or a higher qualification.

This item substitutes the reference to subregulation 2.26(5) with a reference to subregulation 2.26A(6), as the relevant definition of diploma for the purpose of paragraph 5.19(4)(c) is the definition of diploma in subregulation 2.26A(6).

Item [2133] - Division 5.6, after regulation 5.35

This item inserts new regulation 5.35AA which specifies certain decisions as being exempt from the operation of the privative clause provisions under section 474 of the Act.

On 2 October 2001, a new judicial review scheme commenced that applies to all applications for judicial review of visa related decisions lodged on or after 2 October 2001. The privative clause is the key mechanism in the new scheme. It provides decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned, and does not exceed constitutional limits, the decision will be lawful.

In brief, subsection 474(2) of the Act provides that a privative clause decision is an administrative decision made pursuant to the Act, a regulation or other instrument made under the Act. Subsection 474(2), however, excludes decisions referred to in subsections 474(4) and 474(5) from the operation of the privative clause provisions.

Subsection 474(4) of the Act contains a table listing provisions under which decisions that are made are not subject to the operation of the privative clause provisions. The list of provisions within the table reflects the Act as it stood in 1998 when the Migration Legislation Amendment (Judicial Review) Bill was first introduced.

The purpose of this item is to prescribe in the Regulations, pursuant to subsection 474(5) of the Act, a number of powers that have been inserted into the Act between 1998 and the date of commencement of the new judicial review scheme.

In particular, this item provides that for the purposes of subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the table is not a privative clause decision.

The following provisions of the Act are set out in the table:

- section 252AA - Power to conduct a screening procedure;

- section 252A - Power to conduct a strip search;

- section 252B - Rules for conducting a strip search;

- section 252C - Possession and retention of certain things obtained during a screening procedure or strip search;

- section 252D - Authorised officer may apply for a thing to be retained for a further period;

- section 252E - Magistrate may order that thing be retained;

- section 252G - Powers concerning entry to a detention centre; and

- Division 13A of Part 2 - Automatic forfeiture of things used in certain offences.

The exemption of the decisions specified in these Regulations from the operation of the privative clause provisions reflects the policy intention that the privative clause provisions should not apply to certain decisions that:

• are not subject to merits review; and/or

• could not be used to obtain a different outcome in relation to a visa decision.

Item [2134] - Regulation 5.42

This item omits regulation 5.42 from Part 5 of the Regulations.

Regulation 5.42 provides that there is a skill matching fee of $155 which is payable at the time an application is made for a Skill Matching (Migrant) (Class BR) visa.

The purpose of the amendment is to remove this fee, thereby attracting more applicants to the Skill Matching (Migrant )(Class BR) visa.

Part 2 - Amendments of Schedule 1

Item [2201] - Paragraph 1104(3)(b)

This item substitutes paragraphs 1104(3)(b) and (c) with new paragraphs 1104(3)(b) and (c).

New paragraph 1104(3)(b) provides that an application by a person who is usually resident in a foreign country specified in a Gazette Notice must be made to an address that is specified in the Gazette Notice for that country.

New paragraph 1104(3)(c) provides that an application by a person claiming to be a member of a family unit of a person who is an applicant for a Business Skills (Migrant) (Class AD) visa may be made at the same time and place as, and combined with, the application of that person.

Business Skills (Migrant) (Class AD) visa applicants are able to apply for their visas either inside or outside Australia. As a result of the decision to establish 3 Business Skills processing centres in Hong Kong, Taipei and Perth, applicants will be required to make their Class AD visa applications at one of these 3 centres based on where they are usually resident.

Applicants who are usually resident in the People's Republic of China, Hong Kong Special Administrative Region or Macau Special Administrative Region will be required to make their applications at the Department of Immigration and Multicultural and Indigenous Affairs office in Hong Kong.

Applicants who are usually resident in Taiwan will be required to make their applications for Class AD visas at the Australian Chamber of Industry Office in Taipei.

Applicants who are usually resident in all other countries, however, will be required to make their applications at the Perth Business Skills Processing Centre in Perth.

It is intended that these addresses will be specified in a Gazette Notice.

The objective of having 3 processing centres worldwide is to obviate the need for other overseas posts of the Department of Immigration and Multicultural and Indigenous Affairs' to be involved in receiving such applications and being required to send these onto the appropriate Business Skills Centre or otherwise becoming involved in the process. The Business Skills Centres will process all applications to approval and will respond to all progress inquiries following receipt of an application.

New paragraph 1104(3)(c) is a consequential amendment due to the insertion of new paragraph 1104(3)(b).

Item [2202] - Paragraph 1108A(2)(b)

This item substitutes paragraph 1108A(2)(b) with new paragraph 1108A(2)(b) to provide that there is no second instalment of the visa application charge payable before the grant of a Child (Residence) (Class BT) visa.

Whilst orphan relative applicants have been entitled to a concession on the first instalment of the visa application charge, it was not equitable that they (and siblings) were charged the second instalment of the visa application charge, particularly as this is not a requirement in the other subclasses in the child visa classes.

Item [2203] - Subitem 1128AA(3), note

This item omits the note in subitem 1128AA(3) from Schedule 1 of the Migration Regulations, which refers to regulation 5.42.

This technical amendment is consequential to the amendment omitting Regulation 5.42.

Item [2204] - Paragraph 1128BA(3)(p)

This item amends paragraph 1128BA(3)(p) of Schedule 1 to the Migration Regulations by omitting everything before subparagraph 1128BA(3)(p)(i) and inserts new paragraph 1128BA(3)(p).

Item 1128BA relates to a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa. This visa class enables skilled students to apply for permanent resident status onshore.

New paragraph 1128BA(3)(p) provides that if the applicant is, or was at any time, the holder of an AusAID student visa or of a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted to the applicant in respect of a course of study or training for which the applicant is or was provided financial support by the Commonwealth, the government of a State or Territory, the government of a foreign country or a multilateral agency, must satisfy paragraph 1128BA(3)(p).

Subparagraphs 1128BA(3)(p)(i) and (ii) provide that if the course of study or training was for a period of more less than 12 months; or the applicant has ceased, completed, withdrawn from or been excluded from a course of a study or training approved by the AusAID Minister, the government or the multilateral agency that provided financial support to the applicant then subparagraph 1128BA(3)(p)(ii) provides that an applicant is required to have spent at least 2 years outside Australia since ceasing or completing, or withdrawing or being excluded from, the course of study or training.

This item amends paragraph 1128BA(3)(p) to extend its application to an applicant who is, or has been, the holder of an AusAID, Defence or Government sponsored visa including a Subclass 576 (AusAID or Defence Sector) visa.

Item [2205] - After paragraph 1128BA(3)(p)

This item inserts paragraph 1128BA(3)(pa) in Schedule 1 to the Migration Regulations.

Item 1128BA relates to a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa. This visa class enables skilled students to apply for permanent resident status onshore.

Amended paragraph 1128BA(3)(pa) provides that an applicant who is, or was at any time, a member of the family unit of the holder of a visa mentioned in paragraph 1128BA(3)(p) must have spent at least 2 years outside Australia since the holder of that visa ceased, completed, or withdrew or was excluded from, the course of study or training to which the visa related.

Paragraph 1128BA(3)(p) must be satisfied by an applicant who is, or has been, the holder of an AusAID student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted in respect of a course of study or training for which the applicant is, or has been, provided financial support.

Paragraph 1128BA(3)(p), however, does not require the members of the family unit of a holder of one of the visas referred to in paragraph 1128BA(3)(p) to comply with the 2 year restriction period as originally intended.

Therefore, new paragraph 1128BA(3)(pa) ensures that the members of the family unit of a holder of an AusAID Student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa, must also spend at least 2 years outside Australia before being eligible to apply for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa.

Item [2206] - Paragraph 1128CA(3)(m)

This item amends paragraph 1128CA(3)(m) of Schedule 1 to the Migration Regulations by omitting everything before subparagraph 1128CA(3)(m)(i) and inserts new paragraph 1128CA(3)(m).

Item 1128CA relates to a Skilled - Independent Overseas Student (Residence)
(Class DD) visa. This visa class enables skilled students to apply for permanent resident status onshore.

Amended paragraph 1128CA(3)(m) provides that an applicant who is or was at any time, the holder of an AusAID student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted in respect of a course of study or training for which the applicant is or was provided financial support by the Commonwealth, the government of a State or Territory, the government of a foreign country or a multilateral agency, must satisfy paragraph 1128CA(3)(m).

Subparagraphs 1128CA(3)(m)(i) and (ii) provide that if the course of study or training was for a period of more less than 12 months; or the applicant has ceased, completed, withdrawn from or been excluded from a course of a study or training approved by the AusAID Minister, the government or the multilateral agency that provided financial support to the applicant then subparagraph 1128CA(3)(m)(ii) provides that an applicant is required to have spent at least 2 years outside Australia since ceasing or completing, or withdrawing or being excluded from, the course of study or training.

This item amends paragraph 1128CA(3)(m) to extend its application to an applicant who is, or has been, the holder of an AusAID, Defence or Government sponsored visa including a Subclass 576 (AusAID or Defence Sector) visa.

Item [2207] - After paragraph 1128CA(3)(m)

This item inserts paragraph 1128CA(3)(ma) in Schedule 1 to the Migration Regulations.

Item 1128CA relates to a Skilled - Independent Overseas Student (Residence) (Class DD) visa. This visa class enables skilled students to apply for permanent resident status onshore.

Paragraph 1128CA(3)(ma) provides that an applicant who is, or was at any time, a member of the family unit of the holder of a visa mentioned in paragraph 1128CA(3)(m) must have spent at least 2 years outside Australia since the holder of that visa ceased, completed, or withdrew or was excluded from, the course of study or training to which the visa related.

Paragraph 1128CA(3)(m) must be satisfied by an applicant who is, or has been, the holder of an AusAID student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted in respect of a course of study or training for which the applicant is, or has been, provided financial support.

Paragraph 1128CA(3)(m), however, does not require the members of the family unit of a holder of one of the visas referred to in paragraph 1128CA(3)(m) to comply with the 2 year restriction period.

Therefore, the insertion of new paragraph 1128CA(3)(ma) ensures that the members of the family unit of a holder of an AusAID Student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa, must also spend at least 2 years outside Australia before being eligible to apply for a Skilled - Independent Overseas Student (Residence) (Class DD) visa.

Item [2208] - Sub-subparagraphs 1211(2)(a)(i)(A) and (B)

This item amends sub-subparagraphs 1211(2)(a)(i)(A) and (B) to insert visa Subclass 445 (Dependent Child) into the list of visas that an applicant's parent must hold when the applicant is applying for a Subclass 445 visa.

This amendment ensures consistency with new Division 445.1 of these Regulations which inserts a definition of "visa-holding parent" and enables the holder of a Subclass 445 visa to sponsor his or her own child for a Subclass 445 visa.

Item [2209] - Paragraph 1211(3)(a)

This item amends paragraph 1211(3)(a) to insert visa Subclass 445 into the list of visas that an applicant's parent must hold, where an applicant applies for a Subclass 445 (Dependent Child) visa outside Australia.

This amendment is consequential to the amendments made to sub-subparagraphs 1211(2)(a)(i)(A) and (B).

Item [2210] - Paragraph 1212A(3)(j)

Paragraph 1212A(3)(j) provides that an application for a Graduate - Skilled (Temporary) (Class UQ) visa must be made by posting the application to the post office box approved in writing by the Minister.

This item amends paragraph 1212A(3)(j) to provide that an application for a Graduate - Skilled (Temporary) (Class UQ) visa can be validly made by either posting the application to the post office box specified by the Minister, or having the application delivered by a courier service to the address specified by the Minister. This is consistent with the provisions for other skilled visa classes that allow an application to be made if it is delivered by courier service.

The intention is that the application is not made until it is received by the Department.

Item [2211] - Paragraph 1212A(3)(k)

This item amends paragraph 1212A(3)(k) of Schedule 1 to the Migration Regulations by omitting everything before subparagraph 1212A(3)(k)(i) and inserts new paragraph 1212A(3)(k).

Item 1212A relates to a Graduate-Skilled (Temporary) (Class UQ) visa. This visa class is intended to provide eligible overseas students with a temporary visa, that will allow the students to remain lawfully in Australia whilst their application for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa or a Skilled - Independent Overseas Student (Residence) (Class DD) visa is being processed.

Amended paragraph 1212A(3)(k) provides that an applicant who is or was at ant time, the holder of an AusAID student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted in respect of a course of study or training for which the applicant is or was provided financial support by the Commonwealth, the government of a State or Territory, the government of a foreign country or a multilateral agency, must satisfy paragraph 1212A(3)(k).

Subparagraphs 1212A(3)(k)(i) and (ii) provide that if the course of study or training was for a period of more less than 12 months; or the applicant has ceased, completed, withdrawn from or been excluded from a course of a study or training approved by the AusAID Minister, the government or the multilateral agency that provided financial support to the applicant then subparagraph 1212A(3)(k)(ii) provides that an applicant is required to have spent at least 2 years outside Australia since ceasing or completing, or withdrawing or being excluded from, the course of study or training.

This item amends paragraph 1212A(3)(k) to extend its application to an applicant who is, or has been, the holder of an AusAID, Defence or Government sponsored visa including a Subclass 576 (AusAID or Defence Sector) visa.

Item [2212] - After paragraph 1212A(3)(k)

This item inserts paragraph 1212A(3)(ka) in Schedule 1 to the Migration Regulations.

Item 1212A relates to a Graduate - Skilled (Temporary) (Class UQ) visa. This visa class is intended to provide eligible overseas students with a temporary visa, that will allow the students to remain lawfully in Australia whilst their application for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa or a Skilled - Independent Overseas Student (Residence) (Class DD) visa is being processed.

Paragraph 1212A(3)(ka) provides that an applicant who is, or was at any time, a member of the family unit of the holder of a visa mentioned in paragraph 1212A(3)(k) must have spent at least 2 years outside Australia since the holder of that visa ceased, completed, withdrew or was excluded from the course of study or training to which the visa related.

Paragraph 1212A(3)(k) must be satisfied by an applicant who is, or has been, the holder of an AusAID student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted in respect of a course of study or training for which the applicant is, or has been, provided financial support.

Paragraph 1212A(3)(k), however, does not require the members of the family unit of a holder of one of the visas referred to in paragraph 1212A(3)(k) to comply with the 2 year restriction period as originally intended.

Therefore, the insertion of paragraph 1212A(3)(ka) ensures that the members of the family unit of a holder of an AusAID Student visa or a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa, must also spend at least 2 years outside Australia before being eligible to apply for Graduate - Skilled (Temporary) (Class UQ) visa.

Item [2213] - Item 1214B

This item repeals item 1214B of Schedule 1 to the Migration Regulations.

Item 1214B and regulation 2.07AD set out the requirements for making a valid application for an Olympic (Support) (Temporary) (Class UI) visa. Part 499 of Schedule 2 to the Migration Regulations sets out the criteria that must be satisfied for the grant of a Subclass 499 (Olympic (Support)) visa.

The Olympic (Support) (Temporary) (Class UI) visa was introduced on 1 July 1999 specifically for the purposes of the Sydney 2000 Olympic Games.

This visa class has not been used since the close of the Sydney 2000 Olympic Games, and is no longer required.

Regulation 2.07AD in Part 2 of the Migration Regulations and Part 499 of Schedule 2 to the Migration Regulations are also repealed by these Regulations.

Item [2214] - Subitem 1217A(1)

This item omits the reference to Form 48R in subitem 1217A(1) of Schedule 1 of the Regulations and replaces it with a reference to Form 48S.

Subitem 1217A(1) specifies the form on which an application for a Short Stay Sponsored (Visitor) (Class UL) visa must be made.

The effect of the amendment is that an application for a Short Stay Sponsored (Visitor) (Class UL) visa must now be made on Form 48S.

The purpose of this amendment is to distinguish between an application for a Short Stay Sponsored (Visitor) (Class UL) visa, and an application for a Long Stay (Visitor) (Class TN) visa or a Short Stay (Visitor) (Class TR) visa, which are currently all made on Form 48R.

Item [2215] - Subparagraph 1222(3)(aa)(iii)

This item omits the reference to "usually resident" in subparagraph 1222(3)(aa)(iii) of Schedule 1 to the Regulations.

Item 1222 of Schedule 1 to the Regulations sets out how an applicant applies for a Student (Temporary) (Class TU) visa, which comprises visa subclasses 570 to 575.

Paragraph 1222(3)(aa) specifies the manner in which an application on form 157A may be made by an applicant who is outside Australia, is a citizen of a foreign country specified by Gazette Notice and is usually resident in that foreign country. It provides that such an applicant must either:

• post. an application to the post office box address specified by the Minister; or

• have the application delivered by a courier service to the address specified by the Minister

The original purpose behind paragraph 1222(3)(aa) was to, by repatriating student visa applications, reduce the workload of certain posts, in particular the post in Beijing.

The purpose of this amendment, which removes the requirement that the applicant is "usually resident" in that foreign country, is to ensure that applications made by citizens of the People's Republic of China while they are overseas temporarily are not included in the repatriation process. That is, only applications on form 157A made by a citizen of a foreign "Gazette-specified" country while in that country are to be posted or delivered to the address specified by the Minister.

Item [2216] - Subparagraph 1222(3)(aa)(iv)

This item makes a minor technical amendment to subparagraph 1222(3)(aa)(iv), consequential to removing the reference to "usually resident" in subparagraph 1222(3)(aa)(iii).

The purpose of this amendment is to ensure that an application on form 157A can only be made by a citizen of a "Gazette-specified" part of a foreign country while the citizen is in that part of the country.

Item [2217] - Subitems 1225(1), (2) and (3)

This item amends subitems 1225(1), (2) and (3) of Schedule 1 to the Migration Regulations.

The amendment to subitem 1225(1) omits the reference to form 147 as the form for making a valid application for a Working Holiday (Class TZ) visa.

The purpose of this amendment is to ensure that, from 1 July 2002, an applicant can no longer make a valid application for a Working Holiday (Class TZ) visa on form 147.

Instead, an applicant can only make a valid application for a Working Holiday
(Class TZ) visa on form 1150, or a valid Internet application for a Working Holiday (Class TZ) visa on form 1150E.

In particular, new paragraph 1225(1)(b) ensures that if the applicant had applied for, and was granted, a Subclass 417 (Working Holiday) visa in the period between 1 July 2000 and 30 June 2002 (inclusive), the applicant cannot make an Internet application. Rather, such an applicant is required to make an application that is not an Internet application on form 1150.

The amendment to subitem 1225(2) provides that the visa application charge, in the case of person who was granted a Subclass 417 (Working Holiday) visa in the period between 1 July 2000 and 30 June 2002 (inclusive) is nil.

The purpose of this amendment is to allow this group of Subclass 417 visa holders to apply, without charge, for a new Subclass 417 visa. If a person in this group of Subclass 417 visa holders applies for, and is granted, a new Subclass 417, then new subclause 417.511(1) applies.

The effect of new paragraph 1225(3)(a) is that a person who was granted a Subclass 417 visa during the period between 1 July 2000 and 30 June 2002 inclusive can apply for a new Subclass 417 visa in Australia or before he or she enters Australia.

Therefore, paragraph 1225(3)(a) provides that a person who was granted a Subclass 417 visa during this period, and who is applying for a new Subclass 417 visa, must not be in immigration clearance and the application must not be made in immigration clearance. This means that the person may be in or outside Australia.

New paragraph 1225(3)(b) makes it clear that, in relation to a person other than a person granted a Subclass 417 visa during the period 1 July 2000 and 30 June 2002 inclusive, an applicant for a Subclass 417 visa must be outside Australia and the application must be made outside Australia.

The amendments made by this item also substitute new paragraph 1225(3)(c).

This has the effect of removing the combined application option for members of the family unit of a Working Holiday (Class TZ) visa applicant.

Under the working holiday procedures, all applicants for a working holiday visa, including members of the family unit such as spouses, must meet the primary criteria. This is the case regardless of whether the applicant applies for the visa on the same application form as his or her member of the family unit.

The amendment to substitute new paragraph 1225(3)(c) does not alter this requirement. It simply removes the provision for say, spouses, to apply on the same application form and pay a single visa application charge. This initiative was developed in response to concerns about difficulties that might arise when the electronic working holiday visa and electronic health processing come on stream.

Thus, the policy intention behind this amendment is to require all working holiday visa applicants to apply individually. In effect, this means that the relevant visa application charge will be payable by each member of the family unit who applies for a Working Holiday (Class TZ) visa.

New paragraph 1225(3)(c) provides that an Internet application made on form 1150E is taken to have been made outside Australia.

The purpose of this amendment is to remove doubt about whether an Internet application is made in Australia or outside Australia. Otherwise, it would be difficult to determine where an Internet application for a Working Holiday (Class TZ) visa was made. If it was unclear whether an Internet application was made in Australia or outside Australia, it would be difficult to determine whether or not new subparagraph 1225(3)(b)(i) was satisfied in respect of the application.

Part 3 - Amendments of Schedule 2

Item [2301] - Subparagraph 101.211(1)(c)(i)

This item replaces subparagraph 101.211(1)(c)(i) in Schedule 2 of the Migration Regulations with new subparagraph 101.211(1)(c)(i) to limit the circumstances under which a step-child can be sponsored for a Subclass 101 (Child) visa.

The amendment made by this item imposes the new requirement that where the applicant for a Subclass 101 visa is the step-child of the sponsor, then the applicant must fall within the meaning of paragraph (b) of the definition of "step-child" in regulation 1.03.

Paragraph (b) of the definition of "step-child" in regulation 1.03 provides that a step-child in relation to a parent means a child of the parent who is not the natural or adopted child of the parent but:

• who is the natural or adopted child of a former spouse of the parent; and

• who has not turned 18; and

• in relation to whom the parent has a residence order or specific issues order in force under the Family Law Act 1975, or guardianship or custody under a Commonwealth, State or Territory law or a law in force in a foreign country.

A dependent child can be sponsored by a step-parent for permanent residence as a Subclass 101 (Child) visa applicant. This can result in the situation whereby a child may be eligible for permanent residence up to 2 years prior to his or her natural parent being eligible. This anomaly exists because of the "two-step" partner visa process, whereby a partner is granted a provisional visa for 2 years before being granted a permanent visa. The amendment made by this item is intended to correct this anomaly.

Item [2302] - After clause 105.612

Item [2303] - After clause 106.612

These items insert new clauses 105.613 and 106.613 into Parts 105 and 106 of Schedule 2 to the Migration Regulations.

New clauses 105.613 and 106.613 provide that condition 8515 may be imposed on a Subclass 105 (Skilled-Australian-Linked) or Subclass 106 (Regional-Linked) visa respectively.

Condition 8515 provides that the holder of the visa must not marry before entering Australia. This is a technical amendment giving proper effect to the original policy intention.

Item [2304] - Division 117.1, note

This item substitutes the note in Division 117.1 with new clause 117.111 and a note.

The effect of the amendment is to move the definition of "Australian relative" from subclause 117.211(2) in subdivision 117.21 to Division 117.1. The result of this is that the definition applies to the whole of Part 117 rather than to just clause 117.211.

"Australian relative" is therefore defined for the purposes of Part 117 to mean a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

The note to new clause 117.111 includes references to other definitions that may be relevant for the purposes of Part 117. It points to the definitions of "dependent child", "eligible New Zealand citizen", "relative" and "settled" contained in regulation 1.03, the definition of "orphan relative" in regulation 1.14 and the definition of "spouse" in regulation 1.15A.

Item [2305] - Clauses 117.211 and 117.212

This item substitutes clauses 117.211 and 117.212 of Schedule 2 to the Regulations with new clauses 117.211 and 117.212.

New clauses 117.211 and 117.212 set out the criteria that an applicant must satisfy at the time of application in relation to a Subclass 117 (Orphan Relative) visa.

New clause 117.211 no longer contains the definition of "Australian relative", as that definition has been moved to Division 117.1.

The new clause requires that the applicant:

• is an orphan relative of an Australian relative; or

• is not an orphan relative for the sole reason that the applicant has been adopted by the Australian relative mentioned above.

The main change to clause 117.211 is contained in paragraph 117.211(b). The new paragraph enables an applicant to satisfy clause 117.211 where he or she is not an orphan relative only because he or she has been adopted by the Australian relative mentioned in paragraph 117.211(a).

In some situations where a child has become an orphan, an Australian relative of the orphan may adopt the child, feeling that this would be best for the child. However, to do so means that the child (the applicant) no longer fits within paragraph (b) of the meaning of "orphan relative" in regulation 1.14.

Under paragraph 1.14(b) of the Migration Regulations, an applicant for a visa is an "orphan relative" where he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. As the definition of "parent" in regulation 1.03 includes an adoptive parent, an applicant who has been adopted by his or her Australian relative has been unable to be granted a Subclass 117 (Orphan Relative) visa, and in most cases has also been unable to satisfy the criteria for any other visa subclass.

However, as a result of new paragraph 117.211(b), the applicant is able to satisfy clause 117.211.

The new provision is not intended to provide for the adoption of children overseas by Australian relatives in ordinary circumstances.

New clause 117.212 relates to the sponsor of the applicant. Where the applicant is sponsored by the Australian relative, new paragraph 117.212(a) requires that the relative:

• must have turned 18; and

• be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

Where the sponsor of the applicant is the spouse of the Australian relative, new paragraph 117.212(b) requires that the spouse:

• must have turned 18;

• be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

• cohabit with the Australian relative.

The main change to new clause 117.212 is to introduce a requirement that the sponsor of the applicant must be "settled". "Settled" is defined in regulation 1.03 to mean lawfully resident in Australia for a reasonable period of time.

The purpose of these amendments is to make the offshore orphan relative visa subclass (Subclass 117) consistent with the onshore orphan relative visa subclass (Subclass 837), by requiring that sponsors of orphan relative applicants must be "settled".

Item [2306] - Sub-subparagraph 119.211(1)(b)(ii)(C)

Part 119 of the Migration Regulations relates to the grant of visas under the Regional Sponsored Migration Scheme (RSMS).

Sub-subparagraph 119.211(1)(b)(ii)(C) requires an applicant for a Subclass 119 (Regional Sponsored Migration Scheme) visa to hold a diploma unless their appointment has been assessed as exceptional.

This item replaces the reference to the definition of diploma in subregulation 2.26(5) with a reference to the definition of diploma in subregulation 2.26A(6).

During the period between 1995 to 2000 the Australian Qualifications Framework (AQF) gradually replaced the Register of Australian Tertiary Education classification system. Under the AQF the qualification of 'diploma' requires 2 years full-time study, while the definition of 'diploma' in subregulation 2.26(5) requires 3 years of full-time study.

The relevant definition of diploma for the Regional Sponsored Migration Scheme is the definition of diploma in subregulation 2.26A(6).

Item [2307] - After clause 126.612

Item [2310] - After clause 135.612

These items insert clauses 126.613 and 135.613 into Parts 126 and 135 of Schedule 2 to the Migration Regulations.

Clauses 126.613 and 135.613 provide that condition 8515 may be imposed on a Subclass 126 (Independent) or a Subclass 135 (State/Territory - Nominated Independent) visa.

Condition 8515 provides that the holder of the visa must not marry before entering Australia. This is a technical amendment giving proper effect to the original policy intention.

Item [2308] - Subclause 134.215(2)

Item [2311] - Subclause 136.213(2)

Item [2313] - Subclause 137.214(2)

Item [2315] - Subclause 138.216(2)

Item [2318] - Subclause 139.217(2)

These items amend subclauses 134.215(2), 136.213(2), 137.214(2), 138.216(2) and 139.217(2) of the following subclasses in Schedule 2 to the Migration Regulations:

• 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).

The amendments clarify that the applicant must complete the required degree, diploma or trade qualification for award by an Australian educational institution as a result of at least 1 year of full-time study at that institution while the applicant was present in Australia.

The amendments also provide that all instruction for the award must be conducted in English.

The intention is to ensure that subclauses 134.215(2), 136.213(2), 137.214(2), 138.216(2) and 139.217(2) only apply to overseas students who have completed a course of study conducted in English, and are therefore likely to meet the requirement for an applicant to have vocational English. The intention is also to ensure that an applicant only meets the requirements of subclauses 134.215(2), 136.213(2), 137.214(2), 138.216(2) and 139.217(2) if he or she has studied at a particular institution in Australia for at least 1 year.

Item [2309] - After clause 134.222

This item inserts new clauses 134.222A and 134.222B into Part 134 of Schedule 2 to the Migration Regulations.

New subclause 134.222A(1) requires an applicant to have been employed in a skilled occupation for at least the 6 months in the 12 months immediately before the application was made.

New subclause 134.222A(2) provides that where an applicant has completed a degree, diploma or trade qualification the applicant is exempt from having to meet the required employment experience in a skilled occupation. The degree, diploma or trade qualification must have been completed as a result of at least 1 year of full-time study at a particular institution while the applicant was present in Australia, and completed in the 6 months immediately before the application was made. Instruction for the degree, diploma or trade qualification must have been conducted in English.

New clause 134.222B provides that in determining whether an applicant satisfies a criterion that he or she has been employed in a skilled occupation, 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, and the applicant complied with the conditions of that visa.

This has the effect that an applicant is prevented from using work experience obtained illegally in Australia as evidence of employment experience in a skilled occupation.

The intention is to make sure that an applicant, including an applicant who made an application prior to 1 July 2002, may not use illegal work experience to satisfy a requirement that he or she has been employed in a skilled occupation.

Item [2312] - After clause 136.223

Item [2314] - After clause 137.221

Item [2316] - After clause 138.225

Item [2319] - After clause 139.225

These items insert clauses 136.223A, 136.223B, 137.221A, 137.221B, 138.225A, 138.225B, 139.225A and 139.225B into the following subclasses in Schedule 2 to the Migration Regulations:

• Subclass 136 (Skilled (Independent));

• Subclass 137 (Skilled - State/Territory-Nominated Independent);

• Subclass 138 (Skilled - Australian-sponsored); and

• Subclass 139 (Skilled - Designated Area-sponsored).

New subclauses 136.223A(1), 137.221A(1), 138.225A(1) and 139.225A(1) provide that if a certain number of points are specified by Gazette Notice as available for a skilled occupation nominated by the applicant, then the applicant must show that he or she has been employed in that skilled occupation for a certain period.

New subclauses 136.223A(2), 137.221A(2), 138.225A(2) and 139.225A(2) provide that where an applicant has completed a degree, diploma or trade qualification the applicant is exempt from having to meet the required employment experience in a skilled occupation. The degree, diploma or trade qualification must have been completed as a result of at least 1 year of full-time study at a particular institution while the applicant was present in Australia, and completed in the 6 months immediately before the application was made. Instruction for the degree, diploma or trade qualification must have been conducted in English.

Unless an applicant satisfies subclause 136.223A(2), 137.221A(2), 138.225A(2) or 139.225A(2), an applicant must continue to satisfy the requirement in clause 136.223A, 137.221A, 138.225A or 139.225A at the time of decision. That is, an applicant must show that he or she has been employed in the skilled occupation for a certain period. This is subject to clauses 136.223B, 137.221B, 138.225B or 139.225B respectively.

New clauses 136.223B, 137.221B, 138.225B and 139.225B provide that in determining whether an applicant satisfies a criterion that he or she has been employed in a skilled occupation, 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, and the applicant complied with the conditions of that visa.

This has the effect that an applicant is prevented from using work experience obtained illegally in Australia as evidence of employment experience in a skilled occupation.

Item [2317] - Subparagraph 138.228(b)(ii)

This item inserts a reference to clauses 138.225A and 138.225B into subparagraph 138.228(b)(ii) of Part 138 of Schedule 2 to the Migration Regulations.

Subclause 138.225A(1) provides that if a certain number of points are specified by Gazette Notice as available for a skilled occupation nominated by the applicant, then the applicant must show that he or she has been employed in that skilled occupation for a certain period.

Subclause 138.225A(2) provides that where an applicant has completed a degree, diploma or trade qualification the applicant is exempt from having to meet the required employment experience in a skilled occupation. The degree, diploma or trade qualification must have been completed as a result of at least 1 year of full-time study at a particular institution while the applicant was present in Australia, and completed in the 6 months immediately before the application was made. Instruction for the degree, diploma or trade qualification must have been conducted in English.

Clause 138.225B provides that in determining whether an applicant satisfies a criterion that he or she has been employed in a skilled occupation, 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, and the applicant complied with the conditions of that visa.

If an applicant does not satisfy certain skill-related criteria in clauses 138.223, 138.224, 138.226 and 138.227, clause 138.228 allows these clauses to be satisfied by the spouse of the applicant if the applicant satisfies clause 138.225 because of Regulation 2.27A.

Regulation 2.27A allows the applicant to combine the points he or she could receive under Part 9 of Schedule 6A, with the points the applicant's spouse could receive under Parts 1, 2, 3, 4, 5, 6, 7 and 8 of Schedule 6A.

These Regulations insert clauses 138.225A and 138.225B into Schedule 2 to the Migration Regulations. As clauses 138.225A and 138.225B require skill-related criteria to be satisfied, it is appropriate that the spouse of the applicant should be required to satisfy these clauses in subparagraph 138.228(b)(ii).

Item [2320] - Clause 139.228

Item [2321] - Paragraph 139.228(c)

These items amend clause 139.228 by inserting references to clause 139.225A and clause 139.225B.

Subclause 139.225A(1) provides that if a certain number of points are specified by Gazette Notice as available for a skilled occupation nominated by the applicant, then the applicant must show that he or she has been employed in that skilled occupation for a certain period.

Subclause 139.225A(2) provides that where an applicant has completed a degree, diploma or trade qualification the applicant is exempt from having to meet the required employment experience in a skilled occupation. The degree, diploma or trade qualification must have been completed as a result of at least 1 year of full-time study at a particular institution while the applicant was present in Australia, and completed in the 6 months immediately before the application was made. Instruction for the degree, diploma or trade qualification must have been conducted in English.

Clause 139.225B provides that in determining whether an applicant satisfies a criterion that he or she has been employed in a skilled occupation, 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, and the applicant complied with the conditions of that visa.

Clause 139.228 provides that an applicant satisfies clauses 139.224, 139.225, 139.225A, 139.225B, 139.226 and 139.227 if paragraphs 139.228(a), (b) and (c) are satisfied. It is appropriate that clauses 139.225A and 139.225B are added to the list an applicant is taken to satisfy for the purposes of clause 139.228. This is because clauses 139.225A and 139.225B are concerned with the assessment of the applicant's skills, and it is the assessment of the applicant's skills that an applicant is being exempt from if he or she meets the requirements of clause 139.228.

Paragraph 139.228(a) requires an applicant to have satisfied clause 139.218 at the time of application.

Paragraph 139.228(b) requires the applicant's spouse to continue to satisfy clauses 139.215, 139.216 and 139.217.

Paragraph 139.228(c) requires the applicant's spouse to also satisfy clauses 139.224, 139.225, 139.225A, 139.225B, 139.226 and 139.227. Clauses 139.225A and 139.225B have been added to paragraph 139.228(c) because, in order for clause 139.228 to be satisfied, the applicant's spouse must meet the clauses that an applicant is taken to satisfy.

Item [2322] - Paragraph 155.212(2)(b)

The amendments to this item make minor technical amendments that are consequential to those made to clauses 773.511, 956.511, 976.511 and 977.511.

This item substitutes paragraph 155.212(2)(b) of Schedule 2 to the Regulations with new paragraph 155.212(2)(b). New paragraph 155.212(2)(b) is comprised of 2 subparagraphs.

Subclause 155.212(2) requires that applicants be lawfully present in Australia for a period, or periods that total, not less than 2 years in the period of 5 years immediately before their application for a Subclass 155 (Five Year Resident Return) visa. Paragraph 155.212(2)(a) requires an applicant to have held a permanent visa, permanent entry permit or be an Australian citizen.

New subparagraph 155.212(2)(b)(i) requires that an applicant not have held a temporary visa, with the exception of the following visas held concurrently with a permanent visa or permanent entry permit:

• Subclass 773 (Border);

• Subclass 956 (Electronic Travel Authority (Business Entrant - Long Validity));

• Subclass 976 (Electronic Travel Authority (Visitor));

• Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity))

New subparagraph 155.212(2)(b)(ii) requires that an applicant not have held a bridging visa.

The effect of these amendments is that any period in which a person held a Subclass 773, 956, 976 or 977 visa concurrently with a permanent visa or permanent entry permit is included when ascertaining the period specified in subclause 155.212(2).

Item [2323] - Subparagraph 157.212(2)(a)(ii)

The amendments to this item make minor technical amendments that are consequential to those made to clauses 773.511, 956.511, 976.511 and 977.511.

This item substitutes paragraph 157.212(2)(a)(ii) of Schedule 2 to the Regulations with new paragraph 157.212(2)(a)(ii). New paragraph 157.212(2)(a) is comprised of 2 subparagraphs.

Subclause 157.212(2) requires that applicants be lawfully present in Australia for a period, or periods that total, not less than 2 years in the period of 5 years immediately before their application for a Subclass 157 (Three Month Resident Return) visa. Subparagraph 157.212(2)(a)(i) requires an applicant to have held a permanent visa, permanent entry permit or be an Australian citizen.

New sub-subparagraph 157.212(2)(a)(ii)(A) requires that an applicant not have held a temporary visa, with the exception of the following visas held concurrently with a permanent visa or permanent entry permit:

• Subclass 773 (Border);

• Subclass 956 (Electronic Travel Authority (Business Entrant - Long Validity));

• Subclass 976 (Electronic Travel Authority (Visitor));

• Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity))

New sub-subparagraph 157.212(2)(a)(ii)(B) requires that an applicant not have held a bridging visa.

Item [2324] - Clause 417.111, at the foot

This item inserts a note stating that the term "Internet application" is defined in regulation 1.03.

Item [2325] - Subdivision 417.21

This item substitutes new subdivision 417.21 which sets out the criteria that an applicant must satisfy at the time of applying for a Working Holiday (Class TZ) visa.

New subdivision 417.21 will not apply to a person who had applied for, and was granted, a Subclass 417 visa in the period between 1 July 2000 and 30 June 2002 inclusive.

The effect of this is that a person who was granted a Subclass 417 during this period does not have to meet the criteria in subdivision 417.21 at the time of applying for a new Subclass 417 visa. This is because the group of Subclass 417 visa holders mentioned above were not allowed the benefit of the travel facility that was intended to apply to their visas. As such, it is intended that such visa holders should be able to obtain a new Subclass 417 visa that provides them the intended travel facility, without having to satisfy time of application or time of decision criteria.

New clause 417.211 sets out the criteria to be satisfied at time of application if the application is not an Internet application and the applicant had not applied for, and was not granted, a Subclass 417 visa during the period 1 July 2000 and 30 June 2002 inclusive. New clause 417.211 essentially replicates the criteria that were required to be satisfied by an applicant before 1 July 2002 when no provision was made for the electronic processing of Class TZ visas.

As mentioned above, one consequence of new clause 417.211 is that there are no criteria to be satisfied at time of application for an applicant who had applied for, and was granted, a Subclass 417 visa during the period 1 July 2000 and 30 June 2002 inclusive.

New clause 417.212 sets out the criteria to be satisfied if the application is an Internet application.

New subclause 417.212(1) requires applicants to meet the requirements of subclauses 417.212(2) and (3), unless subclause 417.212(4) applies.

New subclause 417.212(2) requires the applicant to state in his or her application that he or she:

• has no dependent children; and

• has turned 18 but has not turned 31; and

• holds a valid passport of a kind specified in a Gazette Notice made under paragraph 417.211(3)(a) or (b); and

• if the applicant holds a valid passport of a kind specified in a Gazette Notice made under paragraph 417.211(3)(b) - the applicant is making the application in a foreign country specified in the Notice for that kind of passport; and

• seeks to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; and

• has sufficient money for:

- the fare to the applicant's intended overseas destination on leaving Australia; and

- personal support for the purposes of a working holiday.

New subclause 417.212(3) requires that the applicant has not previously entered Australia as the holder of a working holiday visa.

New subclauses 417.212(2) and (3) essentially replicate the criteria that were required to be satisfied by an applicant before 1 July 2002 when no provision was made for the electronic processing of Class TZ visas. However, the criterion requiring the applicant to have a reasonable prospect of obtaining employment in Australia has not been included in new clause 417.212. This is because the computer program does not have the function to assess a discretionary criterion.

New subclause 417.212(4) makes it clear that if an applicant makes an Internet application, but does not meet the criteria in new subclauses 417.212(2) and (3), he or she may still satisfy the criteria in subdivision 417.21 by meeting the requirements of subclauses 417.211(2) to (5).

The purpose of new subclause 417.212(4) is to allow the Minister, or the Minister's delegate, to intervene at any stage during the computer-based processing and make a decision personally. This may occur where an applicant's Internet application does not meet one of the objective criteria applicable to an Internet application.

Item [2326] - Subdivision 417.22

This item substitutes new subdivision 417.22 which sets out the criteria that an applicant must satisfy at the time of decision in relation to his or her Working Holiday (Class TZ) visa application.

New subdivision 417.22 will not apply to a person who had applied for, and was granted, a Subclass 417 visa in the period between 1 July 2000 and 30 June 2002 inclusive.

The effect of this is that a person who was granted a Subclass 417 during this period does not have to meet the criteria in subdivision 417.22 at the time of decision in relation to his or her application for a new Subclass 417 visa. This is because the group of Subclass 417 visa holders mentioned above were not allowed the benefit of the travel facility that was intended to apply to their visas. As such, it is intended that such visa holders should be able to obtain a new Subclass 417 visa that provides them the intended travel facility, without having to satisfy time of application or time of decision criteria.

New clause 417.221 sets out the criteria to be satisfied at the time of decision if the application is not an Internet application and the applicant had not applied for, and was not granted, a Subclass 417 visa during the period 1 July 2000 and 30 June 2002 inclusive. New clause 417.221 essentially replicates the criteria that were required to be satisfied by an applicant before 1 July 2002 when no provision was made for the electronic processing of Class TZ visas.

As mentioned above, one consequence of new clause 417.221 is that there are no criteria to be satisfied at time of decision for an applicant who had applied for, and was granted, a Subclass 417 visa during the period 1 July 2000 and 30 June 2002 inclusive.

New subclause 417.222 sets out the criteria to be satisfied at the time of decision if the application is an Internet application.

New subclause 417.222(1) requires applicants to meet the requirements of subclauses 417.222(2) to (7), unless subclause 417.222(8) applies.

New subclause 417.222(2) requires that the applicant continues to satisfy the criteria in:

• paragraph 417.212(a) - has no dependent children;

• paragraph 417.212(d) - makes the application in a foreign country specified in the Gazette Notice;

• paragraph 417.212(e) - seeks to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia;

• paragraph 417.212(f) - has sufficient money to their intended overseas destination on leaving Australia and personal support for the purposes of a working holiday; and

• subclause 417.212(3) - the applicant has not previously entered Australia as the holder of a working holiday visa.

New subclause 417.222(3) requires the applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4013 and 4014.

New subclause 417.222(4) requires the applicant, if he or she has previously been in Australia, to satisfy special return criteria 5001 and 5002(a).

New subclause 417.222(5) requires the applicant to meet the requirements of subclause 417.221(5). Subclause 417.221(5) relates to the capping of Subclass 417 visas in a financial year.

New subclause 417.222(6) requires that the applicant is not an AusAID student or an AusAID recipient.

New subclause 417.222(7) requires that the applicant states in the application that the applicant intends to comply with any conditions subject to which the visa is granted.

New subclauses 417.212(2) to (7) contain substantially similar, though more objective, criteria to the criteria contained in subdivision 417.22 before 1 July 2002. However, the following criteria from subdivision 417.22 were not included in new clause 417.222, because they are discretionary criteria that are not appropriate for computerised decision-making:

• new subclause 417.222(3) does not refer to public interest criterion 4010; and

• new subclause 417.222(4) does not refer to special return criterion 5002(b).

In addition, new subclause 417.222(6) requires the applicant not to be an AusAID student.

New subclause 417.222(8) makes it clear that if an applicant makes an Internet application, but does not meet the criteria in subclauses 417.222(2) to (7), he or she may still satisfy the criteria in subdivision 417.22 by meeting the requirements of subclauses 417.221(2) to (7).

The purpose of new subclause 417.222(8) is to allow the Minister, or the Minister's delegate, to intervene at any stage during the computer-based processing and making a decision personally. This may occur where an applicant's Internet application does not meet one of the objective criteria applicable to an Internet application.

Item [2327] - Clause 417.411

Division 417.4 deals with the circumstances applicable to the grant of a Subclass 417 (Working Holiday) visa. The main change to Division 417.4 is the insertion of new clause 417.412 by this item.

New clause 417.412 has effect in relation to a person who was granted a Subclass 417 visa between the period 1 July 2000 and 30 June 2002 inclusive, and who is applying for a new Subclass 417 visa.

New clause 417.412 provides that if the applicant is outside Australia, then the applicant must be outside Australia at the time of the grant of the visa, and if the applicant is in Australia, then the applicant must be in Australia at the time of the grant of the visa.

This is consistent with the amendments made to subitem 1225(3) of Schedule 1 to the Migration Regulations. Those amendments effectively permit a person who was granted a Subclass 417 visa between the period 1 July 2000 and 30 June 2002 inclusive, to apply for a new Subclass 417 visa regardless of whether the applicant is in or outside Australia, as long as the applicant is not in immigration clearance.

Item [2328] - Clause 417.511

Clause 417.511 governs when a Subclass 417 (Working Holiday) visa has effect.

The problem with this clause has been that when a Subclass 417 visa is granted, the holder is given twelve months from the time of grant to enter Australia. Once the holder has entered Australia, the multiple travel facility on the Subclass 417 visa ceases after twelve months from the date of their visa being granted. Some Subclass 417 visa holders may not actually enter Australia until many months after their visa was granted. This means that many Subclass 417 visa holders do not receive the intended full benefit of the travel facility in the visa.

This item replaces clause 417.511 with new clause 417.511.

New subclause 417.511(1) applies to a person who was granted a Subclass 417.511 visa between the period 1 July 2000 and 30 June 2002 inclusive (the first visa), and has been granted a new Subclass 417 visa. The new Subclass 417 visa will permit the holder to travel to and enter Australia on multiple occasions for twelve months from the date of the first entry on the first visa, and to travel to, enter and remain in Australia until twelve months after the date of first entry on the first visa.

The purpose of this amendment is to allow those people who were granted a Subclass 417 visa between 30 June 2000 and 1 July 2002 to access the more generous multiple travel facilities on the new Subclass 417 visa.

New subclause 417.511(2) applies to any person other than a person who was granted a Subclass 417 visa between the period 1 July 2000 and 30 June 2002 inclusive. This means that a person who applied for a Subclass 417 visa before 1 July 2002 but whose application was not finally determined, or who applies for a Subclass 417 visa on or after 1 July 2002, and whose visa is granted, will be able to travel to and enter Australia within twelve months after the grant of the visa.

In addition, they will be able to travel to, enter and remain in Australia until twelve months after the date of first entry to Australia.

These amendments ensure that, regardless when the holder enters Australia (provided it is within twelve months of the grant of the visa), the visa will allow them to stay in, leave and re-enter Australia on multiple occasions, during the twelve month period from their first entry to Australia.

Item [2329] - Clauses 417.611 and 417.612

This item replaces clauses 417.611 and 417.612 with new clauses 417.611 and 417.612, which set out the conditions to which Subclass 417 (Working Holiday) visas are subject.

New clause 417.611 provides that in the case of a visa granted to an applicant who meets the requirements of subclauses 417.212(2) and (3), and subclauses 417.222(2) to (7), conditions 8108, 8201 and 8403 are imposed.

Essentially, new clause 417.611 applies to those applications fully processed by a computer program, as it does not allow for a discretionary imposition of conditions.

However, conditions 8108 and 8201 will apply to all Subclass 417 visas that are granted, regardless of whether they were granted as a result of an Internet application. Conditions 8108 and 8201 place a limit on the period of time that a visa holder can be employed by the one employer, or engage in any studies or training.

Condition 8403 will only apply to visas that are granted as a result of an Internet application and which are fully processed by a computer program. Condition 8403 will require the visa holder to have his or her visa evidenced at a Departmental office specified by the Minister within the time specified by the Minister. This ensures that electronic working holiday visa applicants will have their visa evidenced onshore for work rights.

New clause 417.612 will apply to a visa granted in any other case - that is, to

a visa that is not granted as a result of an Internet application or where the Internet application was referred to the Minister or delegate for final decision. New clause 417.612 imposes conditions 8108 and 8201. In addition, any one of more of the following conditions may be imposed: 8106, 8107, 8301, 8303, 8501, 8502, 8503, 8516, 8522, 8525 and 8526.

Item [2330] - Paragraph 418.229(a)

This item amends paragraph 418.229(a) to replace the reference to "an associate diploma" with a reference to "a diploma" (within the meaning of subregulation 2.26A(6)).

Part 418 of the Migration Regulations relates to the grant of a visa for a person offered temporary appointment to a position at an Australian tertiary institution, research institution, school or technical college.

Paragraph 418.229(a) requires an applicant for a Subclass 418 (Educational) visa, who is the holder of a Student (Temporary) (Class TU) visa, to have successfully completed a course of study in Australia leading to an associate diploma or above.

The term "associate diploma" is a classification formerly used by the Register of Australian Tertiary Education. During the period from 1995 to 2000 the Australian Qualifications Framework (AQF) gradually replaced the Register of Australian Tertiary Education classification system.

Under the AQF the qualification of "associate diploma" has ceased to exist. The equivalent qualification to "associate diploma" under the AQF is "diploma". Therefore, as "associate diploma" is no longer applicable for qualifications gained after 1995, references to "associate diploma" need to be replaced with "diploma".

The relevant definition of "diploma" for the purposes of a Subclass 418 (Educational) visa is the definition of "diploma" in subregulation 2.26A(6). This definition refers to a diploma, or an advanced diploma, under the AQF that is awarded by a body authorised to award diplomas of those kinds.

Item [2331] - Paragraph 422.227(3)(a)

This item amends paragraph 422.227(3)(a) to replace the reference to an "associate diploma" with a reference to a "diploma" (within the meaning of subregulation 2.26A(6)).

Part 422 of the Migration Regulations relates to the grant of a visa for medical practitioners whose proposed temporary stay in Australia involves providing medical services.

Paragraph 422.227(3)(a) requires an applicant for a Subclass 422 (Medical Practitioner) visa, who is the holder of a Student (Temporary) (Class TU) visa, to have successfully completed a course of study in Australia leading to an associate diploma or above.

The relevant definition of "diploma" for the purposes of a Subclass 422 (Medical Practitioner) visa is the definition of "diploma" in subregulation 2.26A(6). This definition refers to a diploma, or an advanced diploma, under the AQF that is awarded by a body authorised to award diplomas of those kinds.

Item [2332] - Division 445.1

This item replaces Division 445.1 of Part 445 of the Migration Regulations with new Division 445.1.

New Division 445.1 inserts an interpretation provision for the purposes of Part 445. This defines a "visa-holding parent" to mean, for the purposes of Part 445, the parent of an applicant who holds any of the following visas:

• Subclass 309 (Spouse (Provisional));

• Subclass 310 (Interdependency (Provisional));

• Subclass 445 (Dependent Child);

• Subclass 820 (Spouse); and

• Subclass 826 (Interdependency).

The insertion of the definition of "visa-holding parent" in Part 445 provides greater ease in identifying the visa subclasses of which the parent of the dependent child visa applicant must hold.

The note to new Division 445.1 provides a reference to the definition of "dependent child" in regulation 1.03. Regulation 1.03 defines a "dependent child" to mean a natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married). The dependent child may either be a person who:

• has not turned 18; or

• has turned 18 and is dependent on that person or is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.

Item [2333] - Paragraphs 445.211(b) and (c)

This item replaces paragraphs 445.211(b) and (c) with new paragraphs 445.211(b) and (c). This is consequential to the insertion of the interpretation provision in Division 445.1, which defines a "visa-holding parent".

New paragraphs 445.211(b) and (c) provide that an applicant for a Subclass 445 (Dependent Child) visa must be a dependent child of a "visa-holding parent" and be sponsored by the nominator or sponsor of the "visa-holding parent".

The purpose of this amendment is to remove the possibility of a parent sponsoring a child without the knowledge of his or her own sponsor or nominator. This could result in an applicant arriving in Australia without adequate accommodation or financial support. It also ensures that an applicant has a right of review as such rights are limited to Australian citizens, Australian permanent residents or eligible New Zealand citizens and exclude persons holding a "provisional partner" visa.

Item [2334] - Subdivision 445.22

This item replaces subdivision 445.22 of Part 445 with new subdivision 445.22.

New subdivision 445.22 sets out the primary criteria that must be satisfied at time of decision by a Subclass 445 (Dependent Child) visa applicant.

New clause 445.221 requires the parent of the applicant to continue to be a "visa-holding parent".

New clause 445.222 requires the applicant to continue to be a dependent child of the "visa-holding parent".

New clause 445.223 sets out the sponsorship requirements to be satisfied at time of decision for a Subclass 445 (Dependent Child) visa applicant. To satisfy this clause the applicant must meet the requirements of subclause (2), (3) or (4).

Under subclause 445.223(2), the applicant must continue to be sponsored by the sponsor or nominator of the "visa-holding parent".

Under subclause 445.223(3), the "visa-holding parent" must sponsor the applicant where:

• the nominator or sponsor of the "visa-holding parent" has died; or

• the relationship between the "visa-holding parent" and his or her nominator or sponsor has ceased.

Where the relationship between the "visa-holding parent" and his or her nominator has ceased, the "visa-holding parent" must have requested consideration under provisions relating to domestic violence provisions in Subclass 100, 110, 801 or 814. Alternatively, the "visa-holding parent" must have requested consideration under provisions relating to parental arrangements for a child in Subclass 100 or 801.

Under subclause 445.223(4), where the applicant is a dependent child of a parent holding a Subclass 445 (Dependent Child) visa, and the circumstances mentioned in subparagraph 445.223(3)(a)(i) or sub-subparagraph 445.223(3)(a)(ii)(A) or (B) apply, the applicant must be sponsored by the person who satisfies the primary criteria in Subclass 100, 110, 801 or 814.

Under clause 445.224, the sponsorship referred to in new clause 445.223 must be approved by the Minister and still be in force.

Clause 445.225 requires the applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009.

Clause 445.226 provides that, in addition, public interest criteria 4017 and 4018 must be satisfied if the applicant has not turned 18. The purpose of this clause is to ensure that the best interests of the child are not affected by the grant of the visa and that there are no legal impediments to removing the child from his or her home country.

Clause 445.227 provides that each member of the visa applicant's family unit must satisfy certain public interest criteria.

Subclause 445.227(1) provides that each member of the family unit of the applicant who is an applicant for a Subclass 445 (Dependent Child) visa must satisfy public interest criteria 4001, 4002, 4003 4004 4007 and 4009.

Subclause 445.227(2) provides that each member of the family unit of the applicant, who is not an applicant for a Subclass 445 (Dependent Child) visa, must satisfy public interest criteria 4001,4002, 4003 and 4004. Each family member must also satisfy public interest criteria 4007 unless the Minister is satisfied that it would be unreasonable to require a person to undergo an assessment in relation to this public interest criterion.

New clause 445.228 provides that any additional applicants must meet public interest criteria 4015 and 4016.

Item [2335] - Division 445.3

This item replaces Division 445.3 of Part 445 of the Migration Regulations with new Division 445.3, which sets out the secondary criteria that must be satisfied by applicants for a Subclass 445 (Dependent Child) visa.

The note to new Division 445.3 explains that these secondary criteria must be satisfied by applicants who are dependent children of, and who have made a combined application with, the person who satisfies the primary criteria.

New subdivision 445.31 sets out the secondary criteria that must be satisfied by an applicant at the time of application.

New clause 445.311 requires the applicant to be a dependent child of, and have made a combined application with, the person who satisfies the primary criteria for a Subclass 445 (Dependent Child) visa.

New clause 445.312 requires the sponsorship referred to in new paragraph 445.211(c) for the person who satisfies the primary criteria to also include sponsorship of the applicant satisfying the secondary criteria.

New subdivision 445.32 sets out the secondary criteria that must be satisfied by an applicant at the time of decision.

New clause 445.321 requires the applicant to continue to be a dependent child of the person who, having satisfied the primary criteria, is the holder of a Subclass 445 (Dependent Child) visa.

New clauses 445.322 and 445.323 set out the sponsorship requirements for applicants satisfying the secondary criteria.

Under new clause 445.322, the sponsorship referred to in new clause 445.223 for the person who satisfies the primary criteria must also include sponsorship of the applicant satisfying the secondary criteria. In addition, new clause 445.323 requires the sponsorship referred to in new clause 445.322 to have been approved by the Minister and still be in force.

New clause 445.324 provides that the applicant satisfying the secondary criteria must satisfy public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009. If the applicant has not turned 18, new clause 445.325 provides that public interest criteria 4017 and 4018 must also be satisfied.

Item [2336] - Subclause 456.221(1)

This item makes a technical amendment to subclause 456.221(1) to replace the reference to subclause "(3)" with subclause "(4)", as subclause 456.211(3) has been omitted from the Regulations.

Item [2337] - Paragraphs 456.511(a) and (b)

This item substitutes existing paragraphs 456.511(a) and (b) with new paragraphs 456.511(a) and (b).

New paragraph 456.511(a) provides that the Subclass 456 - Business (Short Stay) visa is a temporary visa permitting its holder to travel to, and enter, Australia on 1 or more occasions, as specified by the Minister, until a date specified by the Minister (to a limit of 10 years from the date of grant of the visa).

The purpose of this amendment is to provide flexibility in relation to the number of occasions a Subclass 456 visa holder may travel to and enter Australia. The travel to, and entry into, Australia may occur until a date specified by the Minister. The only limit imposed on this is that the Subclass 456 visa holder must travel to and enter Australia within a period of 10 years, beginning from the date of the grant of the visa.

The Minister, or his or her delegate, therefore, has the discretion to grant either a single or multiple entry Subclass 456 visa. The visa is valid for travel to Australia until a period specified, up to a maximum of 10 years from the date of its grant.

New paragraph 456.511(b) provides that the Subclass 456 visa permits its holder to remain in Australia for a period specified by the Minister, not longer than 3 months after the date of each entry.

The purpose of this amendment is to provide flexibility in relation to the period in which a Subclass 456 visa holder is permitted to remain in Australia on each occasion that he or she travels to and enters Australia. The only limit imposed on this is that the period must not exceed 3 months, beginning from the date on which the holder enters Australia on that occasion.

Item [2338] - Clause 457.212

This item substitutes clause 457.212 of Schedule 2 of the Migration Regulations.

New subclause 457.212(1) provides that if the applicant is the holder of a Student (Temporary) (Class TU) visa (student visa), and is a fully funded student within the meaning given by clause 5A103, the Minister is satisfied that it would not be detrimental to Australia's policies in respect of overseas students to grant the visa.

Subclause 457.212(2) is substituted in unaltered form.

New subclause 457.212(1) removes the requirement on the holder of a student visa to have successfully completed a course in Australia at Associate Diploma level or above.

The new subclause also replaces a reference to 'private subsidised students' with a reference to 'fully funded students within the meaning of clause 5A103'. This amendment is technical, reflecting the supersession of the term 'private subsidised students' by the term 'fully funded student'.

The requirement on the Minister to be satisfied that it would not be "detrimental to Australia's policies in respect of overseas students to grant a visa to a fully funded student", is carried over from clause 457.212 as it was prior to this amendment.

Item [2339] - Part 499

This item omits Part 499 of Schedule 2 to the Migration Regulations.

Part 499 sets out the criteria to be met for the grant of a Subclass 499 (Olympic (Support)) visa.

The Subclass 499 (Olympic (Support) visa was introduced on 1 July 1999 specifically for the purposes of the Sydney 2000 Olympic Games.

This visa subclass has not been used since the close of the Sydney 2000 Olympic Games, and is no longer required.

Regulation 2.07AD of Part 2 to the Migration Regulations and item 1214B of Schedule 1 to the Migration Regulations, which set out the requirements for making a valid application for an Olympic (Support) (Temporary) (Class UI) visa, are also repealed by these Regulations.

Item [2340] - Clause 773.511

This item substitutes clause 773.511 of Schedule 2 to the Regulations with new clause 773.511.

New paragraph 773.511(a)(i) provides that it is a temporary visa which comes into effect on grant.

New paragraph 773.511(a)(ii)(A) provides that if the applicant holds another substantive visa (other than a Special Purpose visa) at the time of grant, then it will not come into effect until the other substantive visa held by the individual ceases.

New paragraph 773.511(a)(ii)(B) provides that if the other substantive visas ceases during the period specified in the Subclass 773 visa then the Subclass 773 visa will come into effect when the other substantive visa ceases.

New paragraph 773.511(b) provides that the Subclass 773 visa permits the holder to remain in Australia for a period specified by the Minister, not exceeding 30 days from the date of grant.

Prior to these amendments, a Subclass 773 (Border) visa would always come into effect when it was granted. This ceased any substantive visa held by the person concerned, by virtue of subsection 82(2) of the Act. The amendments to this clause ensure that where a person holds a substantive visa at the time a Subclass 773 (Border) visa is granted, the Subclass 773 (Border) visa will only come into effect after the person's first substantive visa ceases to be in effect.

A Subclass 773 (Border) visa that does not come into effect on grant, can only come into effect during the period specified in the visa. Therefore, where the visa holder has already remained in Australia (on the first substantive visa) for a period longer than the Subclass 773 (Border) visa allows, then the Subclass 773 visa will not come into effect.

New clause 773.512 provides that if the visa holder holds another substantive visa at the date of grant and that substantive visa is cancelled (within the visa period for the Subclass 773), then the Subclass 773 (Border) will also cease on the cancellation of that substantive visa. In accordance with subsections 82(7) and 82(10) of the Act, this will be at the end of the day the first substantive visa was cancelled.

Examples of how the new amendments will work can be demonstrated by the following:

Applicant "A" holds a Subclass 676 visa and is granted Subclass 773 visa. The Subclass 773 visa will not come into effect. If the Subclass 676 visa ceases after 3 months the Subclass 773 visa will not come into effect because 30 day visa period has passed.

Applicant "A" holds a Subclass 676 visa and is granted a Subclass 773 visa. The Subclass 773 visa will not be in effect. If the Subclass 676 visa is cancelled 2 weeks after the person arrives in Australia it will cease immediately and the Subclass 773 visa will come into effect but will cease at the end of the day (ie, 1 stroke after midnight) the Subclass 676 visa is cancelled

Applicant "A" holds a Subclass 676 visa and is granted a Subclass 773 visa. The Subclass 773 visa will not be in effect. If the Subclass 676 visa is cancelled 5 weeks after the person arrives in Australia it will cease immediately. The Subclass 773 visa will not come into effect because 30 day visa period has passed.

Item [2341] - Clause 801.111, definition of nominating spouse

Item [2342] - Clause 801.111, after definition of prospective marriage (temporary) visa

These items remove the definition of nominating spouse in clause 801.111, and replace it with a definition of sponsoring spouse.

Amendments to Part 801 of Schedule 2 to the Migration Regulations made by these Regulations require an applicant for a Subclass 801 (Spouse) visa to be sponsored, rather than nominated, for the grant of the visa.

Item [2343] - Paragraph 801.221(2)(b)

This item amends paragraph 801.221(2)(b) to require the applicant to continue to be sponsored for the grant of the Subclass 820 (Spouse) visa by either the sponsoring spouse, or the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for the Subclass 820 (Spouse) visa.

This is consequential to amendments made by these Regulations to require 'sponsorship' of Subclass 801 visa applicants rather than 'nomination'.

Item [2344] - Paragraph 802.212(1)(b)

This item makes a minor technical amendment to paragraph 802.212(1)(b) of Schedule 2 to the Migration Regulations as a consequence of the omission of paragraph 802.212(1)(c).

Item [2345] - Paragraph 802.212(1)(c)

This item omits paragraph 802.212(1)(c) concerning nomination requirements from Part 802 to ensure consistency between the sponsorship provisions in visa Subclass 101 (Child) and 802 (Child). Revised sponsorship requirements for visa Subclass 802 (Child) have been inserted into new clause 802.215.

Item [2346] - After subclause 802.212(1)

This item inserts new subclause 802.212(1A) after subclause 802.212(1) of Schedule 2 to the Migration Regulations.

New clause 802.212(1A) sets out the relationship requirements for a Subclass 802 (Child) visa where the applicant is a dependent child because of a step relationship. This new subclause limits the definition of step-child to that defined by paragraph (b) of the definition of "step-child" in regulation 1.03.

This amendment ensures uniformity between the provisions relating to step-children in visa Subclass 101 (Child) and Subclass 802 (Child).

Item [2347] - Subclause 802.213(1)

This item amends subclause 802.213(1) to require the applicant to be under the age of 18 when the adoption took place, and to meet the requirements of subclause (2), (3), (4) or (5), if the Australian citizen, Australian permanent resident or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant. Thus the adoptive parent must be the Australian citizen, Australian permanent resident or eligible New Zealand citizen mentioned in subclause 802.212(1).

Item [2348] - After clause 802.214

This item inserts new clause 802.215 after clause 802.214.

Under new clause 802.215, an applicant must be sponsored by a person who:

• has turned 18;

• is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

• is either the Australian citizen, Australian permanent resident or eligible New Zealand citizen mentioned in paragraph 802.212(1)(a) or the cohabiting spouse of that person so mentioned.

The purpose of these amendments is to ensure that the sponsorship requirements for a Subclass 100 (Child) visa and a Subclass 802 (Child) visa are consistent.

Item [2349] - After clause 802.225

This item inserts clause 802.226 into Part 802 of Schedule 2 to the Migration Regulations.

Clause 802.226 establishes that one of the primary criteria to be satisfied at the time of decision in relation to a Subclass 802 (Child) visa is that the sponsorship requirement contained in clause 802.215 has been approved by the Minister and is still in force.

As the provisions for a Subclass 802 (Child) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2350] - After clause 802.311

This item inserts clause 802.312 into Part 802 of Schedule 2 to the Migration Regulations.

Clause 802.312 establishes that one of the secondary criteria to be satisfied at the time of an application for a Subclass 802 (Child) visa is that the sponsorship mentioned in clause 802.212A of the person who satisfies the primary criteria includes sponsorship of the applicant.

Item [2351] - After clause 802.324

This item inserts clause 802.325 into Part 802 of Schedule 2 to the Migration Regulations.

Clause 802.325 establishes that one of the secondary criteria to be satisfied at the time of decision in relation to a Subclass 802 (Child) visa is that the sponsorship mentioned in clause 802.312 has been approved by the Minister and is still in force.

Item [2352] - Clause 804.212

This item amends substitutes 804.212 in Part 802 of Schedule 2 to the Migration Regulations.

New clause 804.212 mirrors clause 103.212 which sets out the sponsorship requirements for a Subclass 103 (Parent) visa.

Item [2353] - Clause 804.221

This item amends clause 804.221 in Part 804 of Schedule 2 of the Migration Regulations.

This item replaces the reference to clause 804.212 in clause 804.221 with a reference to paragraph 804.212(1)(a). Paragraph 804.212(1)(a) defines an "adult child" to mean a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

As a consequence of the amendments made to clause 804.212, the appropriate reference in clause 804.221 is to paragraph 804.212(1)(a).

Item [2354] - Clause 804.222

This item substitutes clause 804.222 in Part 804 of Schedule 2 to the Migration Regulations to require that the sponsorship in clause 804.212 has been approved by the Minister and is still in force.

Since the provisions for a Subclass 804 (Aged Parent) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2355] - After clause 804.311

This item inserts clause 804.312 into Part 804 of Schedule 2 to the Migration Regulations.

Clause 804.312 establishes that one of the secondary criteria to be satisfied at the time of an application for the grant of a Subclass 804 (Aged Parent) visa is that the sponsorship mentioned in clause 804.212 of the person who satisfies the primary criteria includes sponsorship of the applicant.

As the provisions for a Subclass 804 (Aged Parent) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2356] - After clause 804.324

This item inserts clause 804.325 into Part 804 of Schedule 2 to the Migration Regulations.

Clause 804.325 means that one of the secondary criteria to be satisfied at the time of decision in relation to a Subclass 804 (Aged Parent) visa is that the sponsorship mentioned in clause 804.312 has been approved by the Minister and is still in force.

Item [2357] - Clause 814.111, except the note

This item removes the definition of nominator in clause 814.111 in Part 814 of Schedule 2 to the Migration Regulations and replaces it with a definition of sponsor.

This is consequential to amendments made by these Regulations to require 'sponsorship' of all onshore "family visa stream" applicants rather than 'nomination'.

Item [2358] - Clause 820.111, definition of nominating spouse

Item [2359] - Clause 820.111, after definition of prospective marriage (temporary) visa

These items remove the definition of nominating spouse in clause 820.111 in Part 820 of Schedule 2 to the Migration Regulations, and replace it with a definition of sponsoring spouse.

This is consequential to amendments made by these Regulations to require 'sponsorship' of all onshore "family visa stream" applicants rather than 'nomination'.

Item [2360] - Paragraph 820.211(2)(c)

Item [2361] - Paragraph 820.211(3)(f)

Item [2362] - Paragraph 820.211(4)(f)

Item [2363] - Paragraph 820.211(5)(f)

Item [2364] - Paragraph 820.211(6)(c)

These items substitute paragraphs 820.211(2)(c), 820.211(3)(f), 820.211(4)(f), 820.211(5)(f) and 820.211(6)(c) with new paragraphs providing that the applicant must be sponsored by:

• if the applicant's spouse has turned 18, a spouse who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

• if the applicant's spouse has not turned 18, by a parent or guardian of the spouse who has turned 18 and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

This is consequential to amendments made by these Regulations to require 'sponsorship' of all onshore "family visa stream" applicants rather than 'nomination'.

Item [2365] - After subclause 820.221(3)

This item inserts new subclause 820.221(4) into clause 820.221.

New subclause 820.221(4) establishes that one of the primary criteria to be satisfied for a Subclass 820 (Spouse) visa is that the sponsorship mentioned in paragraphs 820.211(2)(c), 820.211(3)(f), 820.211(4)(f), 820.211(5)(f) or 820.211(6)(c) has been approved by the Minister and is still in force.

As the provisions for a Subclass 820 (Spouse) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2366] - After clause 820.324

This item inserts new clause 820.325 into Part 820 of Schedule 2 to the Migration Regulations.

New clause 820.325 establishes that one of the secondary criteria to be satisfied at time of decision in relation to a Subclass 820 (Spouse) visa is that the sponsorship mentioned in clause 820.311(b) has been approved by the Minister and is still in force.

Item [2367] - After clause 826.325

This item inserts new clause 826.326 into Part 826 of Schedule 2 to the Migration Regulations.

New clause 826.326 establishes that one of the secondary criteria to be satisfied at time of decision in relation to a Subclass 826 (Interdependency) visa is that the sponsorship mentioned in clause 826.311(a) has been approved by the Minister and is still in force.

As the provisions for a Subclass 826 (Interdependency) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2368] - Division 835.1, note

Item [2374] - Division 836.1, note

These items insert a definition of Australian relative into clauses 835.111 and 836.111 in Parts 835 and 836 of Schedule 2 to the Migration Regulations. New clauses 835.111 and 836.111 set out that for Part 835, an Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

Since clauses 835.213 and 836.213 inserted by these Regulations refer to an Australian relative, it is necessary to include a definition of Australian relative in clauses 835.111 and 836.111.

Item [2369] - Clause 835.212

This item substitutes clause 835.212 in Part 835 of Schedule 2 to the Migration Regulations.

New clause 835.212 requires that the applicant is a remaining relative of an Australian relative.

These Regulations insert new clause 835.213 to require sponsorship for a Subclass 835 (Remaining Relative) visa, rather than nomination. Therefore, clause 835.212 is amended so that it only requires that the applicant is a remaining relative of an Australian relative.

Item [2370] - After clause 835.212

This item inserts new clause 835.213 into Part 835 of Schedule 2 to the Migration Regulations.

New clause 835.213 requires that the applicant is sponsored:

• by their Australian relative, if their Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

• by the spouse of their Australian relative, if the spouse cohabits with the relative, is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen and has turned 18.

The purpose of this amendment is to ensure that the sponsor of the applicant is at least 18 years of age. This is consistent with sponsorship requirements in the corresponding offshore visa subclasses.

These Regulations make amendments to require 'sponsorship' of onshore "family visa stream" applicants instead of 'nomination'. Having different requirements for onshore visa applications (requiring 'nomination' of the visa applicant) and offshore visa applications (requiring 'sponsorship' of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore

Item [2371] - After clause 835.226

This item inserts new clause 835.227 into Part 835 of Schedule 2 to the Migration Regulations.

New clause 835.227 establishes that one of the primary criteria to be satisfied at the time of decision for the grant of a Subclass 835 (Remaining Relative) visa is that the sponsorship requirement contained in clause 835.213 has been approved by the Minister and is still in force.

This is consequential to amendments made by these Regulations to require 'sponsorship' of Subclass 835 visa applicants rather than 'nomination'.

Item [2372] - After clause 835.311

This item inserts new clause 835.312 into Part 835 of Schedule 2 to the Migration Regulations.

Clause 835.312 establishes that one of the secondary criteria to be satisfied at the time of application for the grant of a Subclass 835 (Remaining Relative) visa is that the sponsorship mentioned in clause 835.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

Since the provisions for a Subclass 835 (Remaining Relative) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2373] - After clause 835.324

This item inserts new clause 835.325 into Part 835 of Schedule 2 to the Migration Regulations.

Clause 835.325 establishes that one of the secondary criteria to be satisfied at the time of decision for the grant of a Subclass 835 (Remaining Relative) visa is that the sponsorship mentioned in clause 835.312 has been approved by the Minister and is still in force.

As the provisions for a Subclass 835 (Remaining Relative) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2375] - Clause 836.212

This item substitutes clause 836.212 in Part 836 of Schedule 2 to the Migration Regulations.

These Regulations insert new clause 836.213 to require sponsorship for a Subclass 835 (Remaining Relative) visa, rather than nomination. Therefore, clause 835.212 is amended so that it only requires that the applicant is a carer of an Australian relative.

Item [2376] - After clause 836.212

This item inserts new clause 836.213 into Part 836 of Schedule 2 to the Migration Regulations.

New clause 836.213 requires that the applicant is sponsored:

• by their Australian relative, if their Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

These Regulations make amendments to require "sponsorship" of onshore "family visa stream" applicants instead of "nomination". Having different requirements for onshore visa applications (requiring "nomination" of the visa applicant) and offshore visa applications (requiring "sponsorship" of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore.

Item [2377] - After clause 836.226

This item inserts clause 836.227 into Part 836 of Schedule 2 to the Migration Regulations.

New clause 836.227 establishes that one of the primary criteria to be satisfied at the time of decision for the grant of a Subclass 836 (Carer) visa is that the sponsorship requirement contained in clause 836.213 has been approved by the Minister and is still in force.

As the provisions for a Subclass 836 (Carer) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Having different requirements for onshore visa applications (requiring "nomination" of the visa applicant) and offshore visa applications (requiring "sponsorship" of the visa applicant) is outdated and inefficient now that much of the "family visa stream" migration program is managed onshore.

Item [2378] - After clause 836.311

This item inserts new clause 836.312 into Part 836 of Schedule 2 to the Migration Regulations.

Clause 836.312 establishes that one of the secondary criteria to be satisfied at the time of application for the grant of a Subclass 836 (Carer) visa application is that the sponsorship mentioned in clause 836.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

Item [2379] - After clause 836.324

This item inserts clause 836.325 into Schedule 2 of the Migration Regulations.

Clause 836.325 establishes that one of the secondary criteria to be satisfied at the time of decision for the grant of a Subclass 836 (Carer) visa is that the sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.

Item [2380] - Division 837.1, note

This item substitutes the note in Division 837.1 with new clause 837.111 and a note.

This items insert a definition of Australian relative in new clause 837.111 of Schedule 2 to the Migration Regulations to mean a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

As these Regulations make amendments to Part 837 to refer to an Australian relative, it is necessary to include a definition of Australian relative in clauses 837.111.

Item [2381] - Paragraph 837.211(b)

This item substitutes paragraph 837.211(b) in Part 837 of Schedule 2 to the Regulations with new paragraph 837.211(b).

Clause 837.211 contains a criterion that an applicant must satisfy at the time of application in relation to a Subclass 837 (Orphan Relative) visa if the applicant is a person to whom section 48 of the Act applies. Section 48 relates to non-citizens who have been refused a visa or whose visas have been cancelled and provides that they may only apply for particular visas.

New paragraph 837.211(b) requires that the applicant, since last applying for an entry permit or substantive visa:

• has become an orphan relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

• became an orphan relative of the person mentioned above and is no longer an orphan relative for the sole reason that the applicant has been adopted by the relative mentioned above.

The purpose of the amendment is to reflect the concurrent amendment to clause 837.213 so that the applicant is able to satisfy paragraph 837.211(b), in circumstances where section 48 of the Act applies.

Item [2382] - Clause 837.213

This item substitutes clause 837.213 of Part 837 of Schedule 2 to the Migration Regulations with new clauses 837.213 and 837.214.

In effect, clause 837.213 is replaced with clauses similar to clauses 117.211 and 117.212 of the offshore orphan relative subclass (Subclass 117). The reason for this is to align Subclass 837 with Subclass 117, particularly in relation to replacing the concept of a "nominator" with a "sponsor", which carries with it a legal undertaking to provide financial support for the applicant.

Clause 837.213 contains a criterion that an applicant must satisfy at the time of application in relation to a Subclass 837 (Orphan Relative) visa.

New clause 837.213 requires that the applicant:

• is an orphan relative of an Australian relative; or

• is not an orphan relative for the sole reason that the applicant has been adopted by the Australian relative mentioned above.

The main issue in the above clause 837.213 is contained in paragraph 837.213(b). The new paragraph enables an applicant to satisfy clause 837.213 where he or she is not an orphan relative only because he or she has been adopted by the Australian relative mentioned in paragraph 837.213(a).

Under paragraph 1.14(b) of the Migration Regulations, an applicant for a visa is an "orphan relative" where he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. As the definition of "parent" in regulation 1.03 includes an adoptive parent, an applicant who has been adopted by his or her Australian relative has been unable to be granted a Subclass 837 (Orphan Relative) visa, and in most cases has been unable to satisfy the criteria for any other subclass of visa.

However, as a result of new paragraph 837.213(b), the applicant is able to satisfy clause 837.213.

The new provision is not intended to provide for the adoption of children overseas by Australian relatives in ordinary circumstances.

This item also insert new clause 837.214 into Part 837 of the Migration Regulations.

New clause 837.214:

• replaces the requirement that the applicant must have been nominated for the grant of the visa with a requirement that the applicant must have a sponsor; and

• requires that the sponsor of the orphan relative applicant must be "settled".

The amendments align Subclass 837 with clause 117.212 of Subclass 117 (Orphan Relative).

New clause 837.214 relates to the sponsor (formerly the nominator) of the applicant. Where the applicant is sponsored by the Australian relative, new paragraph 837.214(a) requires that the relative:

• must have turned 18; and

• be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

The main issue in the above paragraph is to introduce a requirement that the sponsor (formerly the nominator) of the applicant must be "settled". "Settled" is defined in regulation 1.03 to mean lawfully resident in Australia for a reasonable period of time.

Where the sponsor of the applicant is the spouse of the Australian relative, new paragraph 837.214(b) requires that the spouse:

• must have turned 18;

• be a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

• cohabit with the Australian relative.

The purpose of paragraph 837.214(b) is to make the onshore orphan relative subclass (Subclass 837) consistent with the onshore orphan relative subclass (Subclass 117), by allowing the spouse of the Australian relative to be the sponsor, and to require that such a sponsor must be "settled".

Item [2383] - After clause 837.225

This item inserts new clause 837.226 into Part 837 of Schedule 2 to the Migration Regulations.

Clause 837.226 establishes that one of the primary criteria to be satisfied at the time of decision for the grant of a Subclass 837 (Orphan Relative) visa is that the sponsorship requirement contained in clause 837.214 has been approved by the Minister and is still in force.

As the provisions for a Subclass 837 (Orphan Relative) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2384] - After clause 837.311

This item inserts new clause 837.312 into Part 837 of Schedule 2 to the Migration Regulations.

New clause 837.312 establishes means that one of the secondary criteria to be satisfied at the time of application for the grant of a Subclass 837 (Orphan Relative) visa is that the sponsorship mentioned in clause 837.214 of the person who satisfies the primary criteria includes sponsorship of the applicant.

Item [2385] - After clause 837.324

This item inserts new clause 837.325 into Part 837 of Schedule 2 to the Migration Regulations.

New clause 837.325 establishes means that one of the secondary criteria to be satisfied at the time of decision for the grant of a Subclass 837 (Orphan Relative) visa is that the sponsorship mentioned in clause 837.312 has been approved by the Minister and is still in force.

Item [2386] - Division 838.1, note

This item inserts a definition of Australian relative into clause 838.111 of Part 838 of Schedule 2 to the Migration Regulations. Clause 838.111 defines an Australian relative to mean a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

As clause 838.213, inserted by these Regulations, refers to an Australian relative, it is necessary to include a definition of Australian relative in clause 838.111.

Item [2387] - Clause 838.212

This item amends clause 838.212 in Part 838 of Schedule 2 to the Migration Regulations.

These Regulations insert new clause 838.213 to require sponsorship for a Subclass 838 (Aged Dependent Relative) visa, rather than nomination. Therefore, clause 838.212 is amended so that it only requires that the applicant is an aged dependent relative of an Australian relative.

Item [2388] - After clause 838.212

This item inserts new clause 838.213 into part 838 of Schedule 2 to the Migration Regulations.

New clause 838.213 requires that the applicant is sponsored:

• by their Australian relative, if their Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; or

Item [2389] - After clause 838.226

This item inserts new clause 838.227 into Part 838 of Schedule 2 to the Migration Regulations.

New clause 838.227 means that one of the primary criteria to be satisfied at the time of decision for the grant of a Subclass 838 (Aged Dependent Relative) visa is that the sponsorship requirement contained in clause 838.213 has been approved by the Minister and is still in force.

Since the provisions for a Subclass 838 (Aged Dependent Relative) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2390] - After clause 838.311

This item inserts new clause 838.312 into Part 838 of Schedule 2 to the Migration Regulations.

New clause 838.312 establishes means that one of the secondary criteria to be satisfied at the time of application for the grant of a Subclass 838 (Aged Dependent Relative) visa is that the sponsorship mentioned in clause 838.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

As the provisions for a Subclass 838 (Aged Dependent Relative) visa are amended by these Regulations to require an applicant to be sponsored rather than nominated, it is necessary to ensure the sponsorship has been approved by the Minister and is still in force.

Item [2391] - After clause 838.324

This item inserts new clause 838.325 into Part 838 of Schedule 2 to the Migration Regulations.

Clause 838.325 establishes that one of the secondary criteria to be satisfied at the time of decision for the grant of a Subclass 838 (Aged Dependent Relative) visa is that the sponsorship mentioned in clause 838.312 has been approved by the Minister and is still in force.

Item [2392] - Division 855.1, note

Item [2393] - Division 855.1, note

Item [2397] - Division 856.1, note

Item [2398] - Division 856.1, note

Item [23102] - Division 857.1, note

Item [23103] - Division 857.1, note

These items amend Divisions 855.1, 856.1 and 857.1 to replace the reference to the definition of "associate diploma" in subregulation 2.26(5) with a reference to the definition of "diploma" in subregulation 2.26A(6).

Parts 855, 856 and 857 of the Migration Regulations are concerned with the Labour Agreement Scheme, the Employer Nomination Scheme and the Regional Sponsored Migration Scheme respectively.

Divisions 855.1, 856.1 and 857.1 provide a reference to the definition of "associate diploma" in subregulation 2.26(5).

The term "associate diploma" is a classification formerly used by the Register of Australian Tertiary Education. During the period from 1995 to 2000 the AQF gradually replaced the Register of Australian Tertiary Education classification system.

The relevant definition of "diploma" for the Labour Agreement Scheme, the Employer Nomination Scheme and the Regional Sponsored Migration Scheme is the definition of "diploma" in subregulation 2.26A(6). This definition refers to a diploma, or an advanced diploma, under the AQF that is awarded by a body authorised to award diplomas of those kinds.

Item [2394] - Paragraph 855.212(6)(a)

Item [2399] - Paragraph 856.212(6)(a)

Item [23104] - Paragraph 857.212(6)(a)

These items replace paragraphs 855.212(6)(a), 856.212(6)(a) and 857.212(6)(a) with new paragraphs 855.212(6)(a), 856.212(6)(a) and 857.212(6)(a).

New paragraphs 855.212(6)(a), 856.212(6)(a) and 857.212(6)(a) exclude the requirement that an applicant must not be an "assisted student", as a consequence of the deletion of this term from regulation 1.03. New paragraphs 855.212(6)(a), 856.212(6)(a) and 857.212(6)(a) also replace the reference to an "associate diploma" with a reference to a "diploma".

New paragraphs 855.212(6)(a), 856.212(6)(a) and 857.212(6)(a) provide that an applicant for a Subclass 855 (Labour Agreement) visa must only be the holder of a Student (Temporary) (Class TU) visa granted in relation to an award course completed by the applicant while he or she was the holder of that visa. This award course must have been completed at diploma level or above.

Item [2395] - Subparagraph 855.212(6)(b)(ii)

This item omits the reference to "assisted student" from subparagraph 855.212(6)(b)(ii), as a consequence of the deletion of this term from regulation 1.03.

Item [2396] - Subclause 855.212(8)

This item omits subclause 855.212(8) from Schedule 2 of the Migration Regulations. This amendment is consequential to the deletion of the term "assisted student" from regulation 1.03. As this category of student no longer exists, subclause 855.212(8) is no longer necessary.

Item [23100] - Subparagraph 856.212(6)(b)(ii)

This item omits the reference to an "assisted student" from subparagraph 856.212(6)(b)(ii), as a consequence of the deletion of this term from regulation 1.03.

Item [23101] - Subclause 856.212(8)

This item omits subclause 856.212(8) from Schedule 2 of the Migration Regulations. This amendment is consequential to the deletion of the term "assisted student" from regulation 1.03. As this category of student no longer exists, subclause 856.212(8) is no longer necessary.

Item [23105] - Subparagraph 857.212(6)(b)(ii)

This item omits the reference to an "assisted student" from subparagraph 857.212(6)(b)(ii) as a consequence of the deletion of this term from regulation 1.03.

Item [23106] - Subclause 857.212(8)

This item omits subclause 857.212(8) from Schedule 2 of the Migration Regulations. This amendment is consequential to the deletion of the term "assisted student" from regulation 1.03. As this category of student no longer exists, subclause 857.212(8) is no longer necessary.

Item [23107] - After clause 880.222

Item [23108] - After clause 881.224

These items inserts clauses 880.222A and 881.224A into Part 880 and Part 881 of Schedule 2 to the Migration Regulations.

Clauses 880.222A and 881.224A provide that in determining whether an applicant satisfies a criterion that he or she has been employed in a skilled occupation, 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, and the applicant complied with the conditions of that visa.

Subclass 880 (Skilled - Independent Overseas Student), and Subclass 881 (Skilled - Australian-Sponsored Overseas Student), require the applicant to achieve a certain point score as a criterion for the grant of the visa.

Clauses 880.222 and 881.224 provide that points may be awarded on the basis of a number of factors that are set out in Schedule 6A of the Migration Regulations. One of those factors is employment experience for a certain period in the applicant's nominated skilled occupation.

The purpose of new clauses 880.222A and 881.224A is to ensure that an applicant, including an applicant who made an application prior to 1 July 2002, may not use illegal work experience to be awarded points for employment in a skilled occupation.

Item [23109] - Clause 956.511

This item substitutes clause 956.511 of Schedule 2 to the Regulations with new clause 956.511.

New paragraph 956.511(a)(i) provides that it is a temporary visa which comes into effect on grant.

New subparagraph 956.511(a)(ii)(A) provides that if the where an applicant holds a substantive visa at the time of grant, the Subclass 956 visa will not come into effect until that substantive visa ceases to be in effect. However, a Subclass 956 visa will come into effect on grant where the applicant holds a substantive visa of one of the following kinds:

• Special Purpose visa;

• Subclass 676 (Tourist (Short Stay));

• Subclass 686 (Tourist (Long Stay));

• Subclass 976 (Electronic Travel Authority (Visitor); or

• Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity).

Subparagraph 956.511(a)(ii)(B) provides that a Subclass 956 visa (that does not come into effect on grant), can only come into effect during the period specified in the visa. Therefore, if the visa holder remains in Australia (on the first substantive visa) for a period longer than the Subclass 956 visa allows, then the Subclass 956 visa will not come into effect.

New paragraph 956.511(b) provides that the Subclass 956 visa permits the holder to:

• travel to, and enter, Australia on multiple occasions for the life of the holder's passport; and

• remain in Australia, on each occasion, for a period specified not exceeding 3 month from the date of entry into Australia.

The amendments to this clause ensure that a Subclass 956 (Electronic Travel Authority (Business Entrant - Long Validity) visa only comes into effect when a person's more beneficial substantive visa ceases to be in effect.

New clause 956.512 provides that if the visa holder holds another substantive visa at the date of grant and that substantive visa is cancelled (within the visa period for the Subclass 956 visa), then the Subclass 956 visa will also cease on the cancellation of that substantive visa. In accordance with subsections 82(7) and 82(10) of the Act, this will be at the end of the day the first substantive visa was cancelled.

Examples of how the new amendments will work can be demonstrated by the following:

Applicant "A" holds a Subclass 820 visa. On booking his flight to Australia he is granted a Subclass 956 visa. Applicant "A's" Subclass 956 visa will not come into effect on grant, and his Subclass 820 visa will remain in effect. Once Applicant "A" remains in Australia for a period longer than 3 months since his last entry into Australia, his Subclass 956 visa will cease.

Applicant "A" holds a Subclass 686 visa and is subsequently granted a Subclass 956 visa, the Subclass 956 visa comes into effect on grant and Applicant "A's" Subclass 686 visa ceases to be in effect on the grant of the Subclass 956 visa by virtue section 82(2) of the Act.

Applicant "A" holds a Subclass 820 visa. On booking a flight to Australia he is granted a Subclass 956 visa. He remains in Australia for one month before heading back to the USA for 12 months. Applicant "A's" Subclass 956 visa would not come into effect on grant and his Subclass 820 visa would remain in effect. Assuming he does not re-enter Australia, his Subclass 956 visa would cease when his passport ceases.

Applicant "A" holds a Subclass 457 (Business (Long Stay)) visa and is granted a Subclass 956 visa. Two months after arriving in Australia, Applicant "A's" Subclass 457 visa is cancelled. The Subclass 956 visa comes into effect and it will cease at the end of the day "A's" Subclass 457 visa was cancelled.

Applicant "A" holds a Subclass 956 visa and is granted a Subclass 686 (Tourist (Long Stay)) visa. The effect of the grant of the Subclass 686 visa on Applicant "A's" Subclass 956 visa is that the Subclass 956 visa will cease to be in effect in accordance with subsection 82(2) of the Act.

Item [23110] - Clause 976.511

This item substitutes clause 976.511 of Schedule 2 to the Regulations with new clause 976.511.

New paragraph 976.511(a)(i) provides that it is a temporary visa which comes into effect on grant.

New subparagraph 976.511(a)(ii)(A) provides that where an applicant holds another substantive visa at the time of grant (other than a Special Purpose Visa), the Subclass 976 visa will not come into effect until that other substantive visa ceases to be in effect.

Subparagraph 976.511(a)(ii)(B) provides that where the other substantive visa ceases during the period beginning at the grant of the Subclass 976 (Electronic Travel Authority (Visitor) visa and ending at the end of the period specified in this visa then the Subclass 976 visa will come into effect when the other substantive visa held by the individual ceases.

New paragraph 976.511(b) provides that the Subclass 976 visa permits the holder to:

• travel to, and enter, Australia on multiple occasions within 12 months from the date of the grant of this visa, or within the life of the holder's passport, whichever is shorter; and

• remain in Australia, on each occasion, for a period specified not exceeding 3 month from the date of entry into Australia.

The amendments to this clause ensure that a Subclass 976 visa will only come into effect when a person's first substantive visa ceases to be in effect.

A Subclass 976 visa can only come into effect during the period specified in the visa. Therefore, where the visa holder has already remained in Australia (on the first substantive visa) for a period longer than the Subclass 976 visa would otherwise allow, then the Subclass 976 visa will not come into effect.

New clause 976.512 provides that if the visa holder holds another substantive visa at the date of grant and that substantive visa is cancelled (within the visa period for the Subclass 976 visa), then the Subclass 976 visa will also cease on the cancellation of that substantive visa. In accordance with subsections 82(7) and 82(10) of the Act, this will be at the end of the day the first substantive visa was cancelled.

Examples of how the new amendments will work can be demonstrated by the following:

Applicant "A" holds a Subclass 820 visa. On booking his flight to Australia he is granted a Subclass 976 visa. Applicant "A's" Subclass 976 visa will not come into effect on grant, and his Subclass 820 visa will remain in effect. Once Applicant "A" remains in Australia for a period longer than 3 months since his last entry into Australia, his Subclass 976 visa will cease.

Applicant "A" holds a Subclass 820 visa. On booking a flight to Australia he is granted a Subclass 976 visa. He remains in Australia for one month before heading back to the USA for 12 months. Applicant "A's" Subclass 976 visa would not come into effect on grant and his Subclass 820 visa would remain in effect. Assuming he does not re-enter Australia, his Subclass 976 visa would cease 12 months from the date of the grant or within the life of the passport whichever is the shorter.

Applicant "A" holds a Subclass 457 (Business (Long Stay)) visa and is granted a Subclass 976 visa. Two months after arriving in Australia, Applicant "A's" Subclass 457 visa is cancelled. The Subclass 976 comes into effect and it will cease at the end of the day that Applicant "A's" Subclass 457 visa was cancelled.

Applicant "A" holds a Subclass 976 visa and is granted a Subclass 686 (Tourist (Long Stay)) visa. The effect of the grant of the Subclass 686 visa on Applicant "A's" Subclass 956 visa is that the Subclass 976 visa will cease to be in effect in accordance with subsection 82(2) of the Act.

Item [23111] - Clause 977.511

This item substitutes clause 977.511 of Schedule 2 to the Regulations with new clause 977.511.

New paragraph 977.511(a)(i) provides that it is a temporary visa which comes into effect on grant.

New subparagraph 977.511(a)(ii)(A) provides that generally where an applicant holds a substantive visa at the time of grant, the Subclass 977 visa will not come into effect until that substantive visa ceases to be in effect. However, a Subclass 977 visa will come into effect on grant where the applicant holds a substantive visa of one of the following kinds:

• Special Purpose visa;

• Subclass 676 (Tourist (Short Stay));

• Subclass 686 (Tourist (Long Stay)); or

• Subclass 976 (Electronic Travel Authority (Visitor)).

Subparagraph 977.511(a)(ii)(B) provides that a Subclass 977 visa (that does not come into effect on grant), can only come into effect during the period specified in the visa. Therefore, if the visa holder remains in Australia (on the first substantive visa) for a period longer than the Subclass 977 visa would otherwise allow, then the Subclass 977 visa will not come into effect.

However, subparagraph 977.511(a)(ii)(B) provides that where the other substantive visa ceases during the period beginning at the grant of the Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity) visa and ending at the end of the period specified in this visa then the Subclass 977 visa will come into effect when the other substantive visa held by the individual ceases.

New paragraph 977.511(b) provides that the Subclass 977 visa permits the holder to:

• travel to, and enter, Australia on one or more occasions within 12 months from the date of the grant of this visa, or within the life of the holder's passport, whichever is shorter; and

• remain in Australia, on each occasion, for a period specified not exceeding 3 month from the date of entry into Australia.

The amendments to this clause ensure that a Subclass 977 visa only comes into effect when a person's more beneficial substantive visa ceases to be in effect.

New clause 977.512 provides that if the visa holder holds another substantive visa at the date of grant and that substantive visa is cancelled, then the Subclass 977 visa is in effect for a period that ends when the other substantive visa is cancelled.

Examples of how the new amendments will work can be demonstrated by the following:

Applicant "A" holds a Subclass 820 visa. On booking his flight to Australia he is granted a Subclass 977 visa. Applicant "A's" Subclass 977 visa will not come into effect on grant, and his Subclass 820 visa will remain in effect. Once Applicant "A" remains in Australia for a period longer than 3 months since his last entry into Australia, his Subclass 977 visa will cease.

Applicant "A" holds a Subclass 686 visa and is subsequently granted a Subclass 977 visa, the Subclass 977 comes into effect on grant and Applicant "A's" Subclass 686 ceases to be in effect on the grant of the 977 by virtue section 82(2) of the Act.

Applicant "A" holds a Subclass 820 visa. On booking a flight to Australia he is granted a Subclass 977 visa. He remains in Australia for one month before heading back to the USA for 12 months. Applicant "A's" Subclass 977 would not come into effect on grant and his Subclass 820 visa would remain in effect. Assuming he doesn't re-enter Australia, his Subclass 977 would cease 12 months from the date of the grant or within the life of the passport whichever is the shorter.

Applicant "A" holds a Subclass 457 (Business (Long Stay)) visa and is granted a Subclass 977 visa. Two months after arriving in Australia, Applicant "A's" Subclass 457 visa is cancelled. The Subclass 977 visa comes into effect and it will cease at the end of the day "A's" Subclass 457 visa was cancelled.

Applicant "A" holds a Subclass 977 visa and is granted a Subclass 686 (Tourist (Long Stay)) visa. The effect of the grant of the Subclass 686 visa on Applicant "A's" Subclass 977 visa is that the Subclass 977 visa will cease to be in effect in accordance with subsection 82(2) of the Act.

Part 4 - Amendments of Schedule 4

Item [2401] - Clause 4012A

This item substitutes existing clause 4012A of Schedule 4 to the Regulations with new clause 4012A, which inserts new public interest criterion 4012A.

New public interest criterion 4012A sets out certain requirements for Student (Temporary)(Class TU) visa applicants who have not turned 18 and are not AusAID or Defence students.

In relation to these applicants, new paragraph 4012A(a) requires their application to express a genuine intention to reside in Australia with a person who:

• is a parent of the applicant or a person who has custody of the applicant; or

• is a relative of the applicant and is nominated by a parent of the applicant or a person who has custody of the applicant.

Where the person is a relative of the applicant, this relative must be aged at least 21 and be of good character.

New paragraph 4012A(b) sets out an alternative to the requirement in new paragraph 4012A(a). In relation to these applicants, this is not a new alternative in that it requires a signed statement to be given to the Minister by the education provider for the course in which the applicant is enrolled. The purpose of this statement is to confirm that appropriate arrangements have been made for the applicant's accommodation, support and general welfare during the applicant's stay in Australia.

The purpose of new paragraph 4012A(a) is to address concerns about possible abuse of student minors. Under current arrangements, the person nominated to care for a student minor can be any person aged at least 18 years. Significant concerns have been raised regarding the maturity and suitability of carers who themselves have only just turned 18 years of age, and who are not related to the student. There are also concerns that the student minor should not be cared for by a person who is not of good character.

To address these concerns it was decided to restrict nominated carers to persons who are a relative of a student, are at least 21 years old and are of good character as evidenced by a police clearance certificate.

The use of the word 'reside' in new clause 4012A in lieu of the word 'stay' is consistent with the strengthening of the care arrangements and will require the nominated relative to have long-term or permanent residence in Australia, allowing a stable and ongoing arrangement for care of the student.

Part 5 - Amendments of Schedule 5A

Item [2501] - Paragraph 5A202(c)

This item makes a minor amendment to paragraph 5A202(c) of Schedule 5A to the Regulations.

Clause 5A202 sets out the financial requirements that must be satisfied by Subclass 570 (Independent ELICOS Sector) visa applicants at assessment level 5. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

New paragraph 5A202(c) makes it clear that these funds must have been held by the applicant for at least the 5 years immediately before the date of the student visa application.

Item [2502] - Subclause 5A205(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A205(2) of Schedule 5A to the Regulations.

Clause 5A205 sets out the financial requirements that must be satisfied by Subclass 570 (Independent ELICOS Sector) visa applicants at assessment level 4. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purpose of this amendment is to make it clear that where the source of funds is a money deposit, the individual must have held the money deposit for at least the 6 months immediately before the date of the student visa application.

Item [2503] - Subclause 5A208(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A208(2) of Schedule 5A to the Regulations.

Clause 5A208 sets out the financial requirements that must be satisfied by Subclass 570 (Independent ELICOS Sector) visa applicants at assessment level 3. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

The purpose of the amendment is to make it clear that where the source of funds is a money deposit, the individual must have held the money deposit for at least the 3 months immediately before the date of the student visa application.

Item [2504] - Subclause 5A208(2), definition of funds from an acceptable source, paragraph (b)

This item makes a minor technical amendment that is consequential to amendments made to paragraphs 5A308(2)(b), 5A508(2)(b) and 5A608(2)(b) relating to the definition of "funds from an acceptable source" to ensure that, where the source of funds is a loan from a financial institution, this loan must be made to, and held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A208(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2505] - Paragraph 5A302(e)

This item makes a minor amendment to paragraph 5A302(e) of Schedule 5A to the Regulations.

Clause 5A302 sets out the financial requirements that must be satisfied by Subclass 571 (Schools Sector) visa applicants at assessment level 5. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purposes of the amendment is to make it clear that the funds must have been held by the applicant in money deposits for at least the 5 years immediately before the date of the application.

Item [2506] - Subclause 5A305(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A305(2) of Schedule 5A to the Regulations.

Clause 5A305 sets out the financial requirements that must be satisfied by Subclass 571(Schools Sector) visa applicants at assessment level 4. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

The purpose of this amendment is to make it clear that, where the source of funds is a money deposit, the individual must have held the money deposit for at least the 6 months immediately before the date of the student visa application.

Item [2507] - Subclause 5A305(2), definition of funds from an acceptable source, paragraph (b)

This item makes a minor technical amendment that is consequential to amendments made to paragraphs 5A308(2)(b), 5A508(2)(b) and 5A608(2)(b) relating to the definition of "funds from an acceptable source" in subclause 5A305(2) to ensure that, where the source of funds is a loan from a financial institution, this loan must be made to, and held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A305(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2508] - Clause 5A306

This item substitutes existing clause 5A306 of Schedule 5A to the Regulations with new clause 5A306.

New clause 5A306 sets out additional requirements that must be satisfied by Subclass 571 (Schools Sector) visa applicants, at assessment level 4, who are not exchange students.

New sub-subparagraph 5A306(a)(i)(A) provides that the applicant must give evidence that the principal course he or she proposes to undertake will be of at least 16 months duration.

New sub-subparagraph 5A306(a)(i)(B) provides an alternative to new sub-subparagraph 5A306(a)(i)(A). It provides that an applicant may instead give evidence that he or she has undertaken, outside Australia, a secondary school course of at least 2 years duration. This course must have been:

• a course with an Australian curriculum; and

• conducted in English by an Australian provider.

The applicant must also be recognised by the relevant State or Territory education authority as meeting the requirements for successful completion of the relevant secondary school years.

This requirement is substituted for the current requirement that teaching staff of the Australian provider be Australian citizens. The purpose of this amendment was to make this requirement less restrictive.

Under new subparagraphs 5A306(a)(ii) and 5A306(a)(iii), the non-exchange student applicant must also have successfully completed secondary schooling to at least the Year 9 level (or its equivalent) and, at the time of making the application, have been less than 18 years old, respectively.

New sub-subparagraph 5A306(a)(i)(B) focuses on whether the applicant has successfully completed his or her studies and whether these studies are to an Australian educational standard or level of the relevant years. In order to meet new subparagraph 5A306(a)(i)(B), an applicant also needs to give evidence that an Australian State or Territory education authority has confirmed that the applicant has successfully completed the relevant years concerned.

New paragraph 5A306(b) sets out the evidence that an applicant, who is not an exchange student, may provide as alternative to the evidence required under new paragraph 5A306(a).

Under new subparagraph 5A306(b)(i), the applicant must lodge his or her visa application in Australia, but not in immigration clearance.

Under new subparagraphs 5A306(b)(ii) and 5A306(b)(iii), an applicant must also give evidence that he or she has successfully completed Year 11 secondary schooling in Australia and that he or she is enrolled in Year 12 in Australia, respectively.

This amendment enables Subclass 571 (Schools Sector) student visa applicants from assessment level 4 to complete their Year 12 studies if their current visa expires before they have completed them. Such students will then be required to satisfy new paragraph 5A306(b).

Concerns were raised by the schools sector that the current legislation does not allow students from higher risk countries to complete their Year 12 studies if their current visa expires before that time.

Such students would be refused a further student visa if they had already reached 18 years of age or if they required a visa of less than 16 months in duration. For many students, this would cause significant problems and may force them to abandon their course of study near completion.

To address this problem, these amendments will allow students who have completed Year 11 in Australia, and who are able to provide evidence of enrolment in Year 12, to apply for a further student visa that is less than 16 months in duration to complete their studies, even if they have already turned 18 years of age.

Item [2509] - Subclause 5A308(2), definition of funds from an acceptable source, paragraphs (a) and (b)

This item substitutes paragraphs (a) and (b) of the definition of funds from an acceptable source in subclause 5A308(2) with new paragraphs (a) and (b).

Clause 5A308 sets out the financial requirements that must be satisfied by Subclass 571 (Schools Sector) visa applicants at assessment level 3, who are not exchange students. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

Subclause 5A308(2) defines "funds from an acceptable source" for the purposes of clause 5A308.

The purpose of new paragraph 5A308(2)(a) is to provide that "funds from an acceptable source" include a money deposit or the value of an item of property held by the applicant, or by an individual who is providing support to the applicant, for at least the 3 months immediately before the date of the student visa application.

Loans from financial institutions are regarded as one of a number of acceptable sources of funds. Concerns have been raised that the Regulations may be interpreted as meaning that a loan from a financial institution can only be held in the name of the applicant. This interpretation is more restrictive than what was originally intended.

To clarify any potential confusion, the new paragraph 5A308(2)(b) provides that a loan from a financial institution can be held in the name of the applicant or the individual providing support to the applicant.

Thus, new paragraph 5A308(2)(b) provides that "funds from an acceptable source" include a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant.

Item [2510] - Clause 5A309

This item substitutes clause 5A309 with new clause 5A309.

New clause 5A309 sets out the additional requirements that must be satisfied by Subclass 571 (Schools Sector) visa applicants, who are not exchange students, at assessment level 3.

New sub-subparagraph 5A309(a)(i)(A) requires an applicant to give evidence that the principal course that he or she proposes to undertake will be of at least 16 months duration.

New sub-subparagraph 5A309(a)(i)(B) requires, as an alternative to new sub-subparagraph 5A309(a)(i)(A), that the applicant give evidence that he or she has undertaken, outside Australia, a secondary course of at least 2 years duration. This school course must:

• have had an Australian curriculum; and

• have been conducted in English by an Australian provider.

The applicant must also have been recognised by the relevant State or Territory education authority as meeting the requirements for successful completion of those years.

In addition, new subparagraphs 5A309(a)(ii) and 5A309(a)(iii) require the applicant to give additional evidence that he or she has successfully completed schooling to at least the Year 6 level (or its equivalent) and that, at the time of making the application, he or she was less than 18 years old.

New sub-subparagraph 5A309(a)(i)(B) focuses on whether the applicant has successfully completed his or her studies and whether these studies are to an Australian educational standard or level of the relevant years. In order to meet new subparagraph 5A309(a)(i)(B), an applicant also needs to give evidence that an Australian State or Territory education authority has confirmed that the applicant has successfully completed the relevant years concerned.

New paragraph 5A309(b) sets out the evidence that an applicant, who is not an exchange student, may provide as alternative to the evidence required under new paragraph 5A309(a).

New paragraph 5A309(b)(i) requires an applicant to lodge his or her visa application in Australia, but not in immigration clearance and to give evidence that he or she has successfully completed Year 11 secondary schooling in Australia and is enrolled in Year 12 in Australia.

This amendment enables Subclass 571 (Schools Sector) student visa applicants from assessment levels 3 to complete their Year 12 studies if their current visa expires before they have completed them. Such students will then be required to satisfy new paragraph 5A309(b).

Item [2511] - Paragraph 5A402(c)

This item makes a minor amendment to paragraph 5A402(c) of Schedule 5A to the Regulations.

Clause 5A402 sets out the financial requirements that must be satisfied by Subclass 572 (Vocational Education and Training Sector) visa applicants at assessment level 5. It requires, amongst other things, that an applicant provide evidence that he or she has sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purpose of this amendment to paragraph 5A402(c) is to make it clear that funds must have been held by the applicant in money deposits for at least the 5 years immediately before the date of the application.

Item [2512] - Subclause 5A405(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A405(2) of Schedule 5A to the Regulations.

Clause 5A405 sets out the financial requirements that must be satisfied by Subclass 572 (Vocational Education and Training Sector) visa applicants at assessment level 4. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

Subclause 5A405(2) defines "funds from an acceptable source" for the purposes of clause 5A405.

The purpose of this amendment is to make it clear that, where the acceptable source of funds is a money deposit, the individual must have held the money deposit for at least the 6 months immediately before the date of the student application.

Item [2513] - Subclause 5A408(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A408(2) of Schedule 5A to the Regulations.

Clause 5A408 sets out the financial requirements that must be satisfied by Subclass 572 (Vocational Education and Training Sector) visa applicants at assessment level 3. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

Subclause 5A408(2) defines "funds from an acceptable source" for the purposes of clause 5A408.

The purpose of this amendment is to make it clear that, where the acceptable source of funds is a money deposit, the individual must have held the money deposit for at least the 3 months immediately before the date of the student visa application.

Item [2514] - Subclause 5A408(2), definition of funds from an acceptable source, paragraph (b)

This item makes a minor technical amendment that is consequential to amendments made to paragraphs 5A308(2)(b), 5A508(2)(b) and 5A608(2)(b) relating to the definition of "funds from an acceptable source" in subclause 5A408(2) to clarify that, where the source of funds is a loan from a financial institution, this must be made to, and held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A408(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2515] - Paragraph 5A502(c)

This item makes a minor amendment to paragraph 5A502(c) of Schedule 5A to the Regulations.

Clause 5A502 sets out the financial requirements that must be satisfied by Subclass 573 (Higher Education Sector) visa applicants at assessment level 5. It requires, amongst other things, that the applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purpose of this amendment is to make it clear that the funds must have been held by the applicant in money deposits for at least the 5 years immediately before the date of the student visa application.

Item [2516] - Subclause 5A505(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A505(2) of Schedule 5A to the Regulations.

Clause 5A505 sets out the financial requirements that must be satisfied by Subclass 573 (Higher Education Sector) visa applicants at assessment level 4. Amongst other things, it requires that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

Subclause 5A505(2) defines "funds from an acceptable source" for the purposes of clause 5A505.

The purposes of this amendment is to clarify that, where the source of funds is a money deposit, the individual must have held the money deposit for at least the 6 months immediately before the date of the student visa application.

Item [2517] - Subclause 5A505(2), definition of funds from an acceptable source, paragraph (b)

This item makes a minor technical amendment that is consequential to amendments made to paragraphs 5A308(2)(b), 5A508(2)(b) and 5A608(2)(b) relating to the definition of "funds from an acceptable source" in subclause 5A505(2) to clarify that, where the source of funds is a loan from a financial institution, this must be made to, or held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A505(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2518] - Subclause 5A508(2), definition of funds from an acceptable source, paragraphs (a) and (b)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A508(2) of Schedule 5A to the Regulations.

Clause 5A508 sets out the financial requirements that must be satisfied by Subclass 573 (Higher Education Sector) visa applicants at assessment level 3. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

Subclause 5A508(2) defines "funds from an acceptable source" for the purposes of clause 5A508.

The purpose of this amendment is to clarify the requirements when the acceptable source of funds is a money deposit or a loan from a financial institution.

New paragraph (a) of the definition in subclause 5A508(2) provides that an acceptable source of funds includes a money deposit that the applicant or an individual who is providing support to the applicant has held for at least the 3 months immediately before the date of the student visa application.

To clarify any potential confusion, the new paragraph (b) of the definition in subclause 5A308(2) provides that a loan from a financial institution can be held in the name of the applicant or the individual providing support to the applicant.

Thus, new paragraph (b) provides that an acceptable source of funds includes a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant.

Item [2519] - Paragraph 5A602(c)

This item makes a minor amendment to paragraph 5A602(c) of Schedule 5A to the Regulations.

Clause 5A602 sets out the financial requirements that must be satisfied by Subclass 574 (Masters and Doctorate Sector) visa applicants at assessment level 5. Amongst other things, it requires an applicant to provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purpose of this amendment is to make it clear that sufficient funds must have been held by the applicant in money deposits for at least the 5 years immediately before the date of the student visa application.

Item [2520] - Subclause 5A605(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A605(2) of Schedule 5A to the Regulations.

Clause 5A605 sets out the financial requirements that must be satisfied by Subclass 574 (Masters and Doctorate Sector) visa applicants at assessment level 4. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

Subclause 5A605(2) defines "funds from an acceptable source" for the purposes of clause 5A605.

The purpose of this amendment is to clarify that an acceptable source of funds is a money deposit where the applicant has held the money deposit for at least the 6 months immediately before the date of the student visa application.

Item [2521] - Subclause 5A605(2), definition of funds from an acceptable source, paragraph (b)

This item makes a minor technical amendment that is consequential to amendments made to paragraph (b) of the definition of "funds from an acceptable source" in subclauses 5A308(2), 5A508(2) and 5A608(2) to clarify that, where the source of funds is a loan from a financial institution, this must be made to, and held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A605(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2522] - Subclause 5A608(2), definition of funds from an acceptable source, paragraphs (a) and (b)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A608(2) of Schedule 5A to the Regulations.

To clarify any potential confusion, the new paragraph 5A608(2)(b) provides that a loan from a financial institution can be held in the name of the applicant or the individual providing support to the applicant.

Thus, the purpose of the amendment to paragraph 5A608(2)(b) is to clarify that an acceptable source of funds includes a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant.

Item [2523] - Paragraph 5A702(c)

This item makes a minor amendment to paragraph 5A702(c) of Schedule 5A to the Regulations.

Clause 5A702 sets out the financial requirements that must be satisfied by Subclass 575 (Non-Award Foundation / Other Sector) visa applicants at assessment level 5. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds, in money deposits, to meet certain expenses.

The purpose of this amendment is to make it clear that the funds must have been held by the in money deposits for at least the 5 years immediately before the date of the student visa application.

Item [2524] - Subclause 5A705(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A705(2) of Schedule 5A to the Regulations.

Clause 5A705 sets out the financial requirements that must be satisfied by Subclass 575 (Non-Award Foundation / Other Sector) visa applicants at assessment level 4. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

Subclause 5A705(2) defines "funds from an acceptable source" for the purposes of clause 5A705.

The purpose of this amendment is to make it clear that an acceptable source of funds includes a money deposit that has been held by an acceptable individual for at least the 6 months immediately before the date of the student visa application.

"Acceptable individual" is defined in subclause 5A705(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2525] - Subclause 5A708(2), definition of funds from an acceptable source, paragraph (a)

This item makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A708(2) of Schedule 5A to the Regulations.

Clause 5A708 sets out the financial requirements that must be satisfied by Subclass 575 (Non-Award Foundation / Other Sector) visa applicants at assessment level 3. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their visa application.

Subclause 5A708(2) defines "funds for an acceptable source" for the purposes of clause 5A708.

The purpose of this amendment is to clarify that an acceptable source of funds includes a money deposit that has been held by an acceptable individual for at least the 3 months immediately before the date of the student visa application.

"Acceptable individual" is defined in subclause 5A708(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2526] - Subclause 5A708(2), definition of funds from an acceptable source, paragraph (b)

This items makes a minor technical amendment to the definition of "funds from an acceptable source" in subclause 5A708(2) to clarify that, where the source of funds is a loan from a financial institution, this must be made to, and held in the name of, an acceptable individual.

"Acceptable individual" is defined in subclause 5A708(2) to include the applicant or the applicant's spouse, parents or grandparents.

Item [2527] - Paragraph 5A802(c)

This item makes a minor amendment to paragraph 5A802(c) of Schedule 5A to the Regulations.

Clause 5A802 sets out the financial requirements that must be satisfied by Subclass 576 (AusAID or Defence Sector) visa applicants at assessment level 5. It requires, amongst other things, that an applicant provide evidence that he or she has held sufficient funds for a period of time before the date of their visa application. Concerns have been raised that the Regulations could be interpreted as not requiring the funds to have been held for a period immediately prior to the date of their student visa application.

The purpose of this amendment is to make it clear that the applicant must have held funds in money deposits for at least the 5 years immediately before the date of the student visa application.

Part 6 - Amendments of Schedule 8

Item [2601] - Clause 8107

This item substitutes clause 8107 with new clause 8107 inserting an expanded condition 8107 into Schedule 8 of the Regulations.

Condition 8107 as it was prior to this amendment sets out that the holder of a visa to which the condition is attached must not change employer or occupation in Australia without the permission in writing of the Secretary.

New condition 8107 sets out that the holder of a visa to which the condition is attached must not:

• if the visa was granted to enable the holder to be employed in Australia:

- cease to be employed by the employer in relation to which the visa was granted; or

- work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

- engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted; or

• in any other case:

- cease to undertake the activity in relation to which the visa was granted; or

- engage in an activity inconsistent with the activity for which the visa was granted; or

- engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted.

Condition 8107 is imposed on temporary residence visas to ensure that the visa holder carries out the specific employment or activity for which the visa was granted. It is intended to prevent visa holders ceasing employment or the activity, or undertaking alternative or additional work or activity, that is not consistent with the visa grant.

Item [2602] - Clause 8532

This item substitutes existing clause 8532 of Schedule 8 to the Regulations with new clause 8532.

New clause 8532 imposes a condition on a holder of a visa who:

• has not turned 18; and

• is not an AusAID or Defence student; and

• is not staying in Australia with a person set out in new subparagraph 8532(c)(i) or 8532(c)(ii).

New subparagraph 8532(c)(i) provides for a parent of the visa holder or a person who has custody of the holder.

New subparagraph 8532(c)(ii) provides for a relative of the holder who is nominated by a parent of the holder or a person who has custody of the holder, who is aged at least 21 and who is of good character.

New clause 8532 requires such a holder of a visa to maintain arrangements, approved by the education provider for the course to which the holder's visa relates, for the holder's accommodation, support and general welfare.

The purpose of new paragraph 8532(c) is to address concerns about possible abuse of student minors. Under current arrangements, the person nominated to care for a student minor can be any person aged at least 18 years. Significant concerns have been raised regarding the maturity and suitability of carers who themselves have only just turned 18 years of age, and who are not related to the student. There are also concerns that the student minor should not be cared for by a person who is not of good character.

In new clause 8532, the word "stay" is viewed as more appropriate than the word "reside" in that it obliges an education provider monitor both the "temporary" and "permanent" care arrangements for student minors in Australia where they are not staying with a parent or nominated relative.

Part 7 - Amendment of Schedule 12

Item [2701] - Schedule 12

This item substitutes Schedule 12 with new Schedule 12 setting out the text of letters referred to in paragraph 2.12A(3)(a) exchanged between representatives of Australia and the PRC on 4 April 2002 and 5 April 2002.

The item is consequential to the substitution by these Regulations of new regulation 2.12A.

Part 8 - Further amendments

Item [2801] - Schedule 2 - further amendments

This item contains a table that replaces each reference to nominated, nominating, nominator and so forth with references to sponsored, sponsoring, and sponsor in Parts 801, 814, 820 and 826 of Schedule 2 to the Migration Regulations.

This is consequential to amendments made by these Regulations to require 'sponsorship' of Subclass 801, 814, 820 and 826 visa applicants rather than 'nomination'.

This item also replaces the references to Subclass 814 in paragraphs 814.221(2)(d) and 814.221(3)(b) with references to Subclass 826. The intention is that a sponsor is only required to fulfil sponsorship obligations for 2 years after the grant of a Subclass 826 visa.

This item also amends subparagraph 820.312(a)(i) to replace the reference to subclause 820.211(6) with a reference to subclause 820.211(2A). This is to correct a typographical error made when the Regulations were updated on 1 November 1996. Prior to 1 November 1996, subparagraph 820.312(a)(i) referred to clause 820.211(6).

This item makes consequential amendments to clause 802.213 as a result of the amendments made to subclause 802.213(1).