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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 6) 2002 NO. 230
EXPLANATORY STATEMENTSTATUTORY RULES 2002 No. 230
Issued by the Minister for Immigration and Multicultural and Indigenous Affairs
Migration Act 1958
Migration Amendment Regulations 2002 (No. 6)
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 the Migration Regulations 1994 (the Migration Regulations) to change the requirements for making a valid visa application for certain visa classes, amend the criteria for the grant of certain visa subclasses, and create a new visa class for certain applicants seeking to work and holiday in Australia. The Regulations effect changes to the Migration Regulations to:
• amend the dependent child provisions to:
- ensure that the child of a dependent child is eligible for the same permanent partner visa as their parent;
- allow applicants for an Extended Eligibility (Temporary) (Class TK) visa to apply in Australia as well as outside Australia; and
- remove the provision that enabled a dependent child to be added to their parent's provisional partner visa application after a decision has been made on that application (such children can apply for a Subclass 445 (Dependent Child) visa under amendments made by these Regulations);
• require an application for a Parent (Migrant) (Class AX) visa to be made by post or courier service to an address specified in a Gazette Notice. These amendments expedite the processing of Class AX visa applications by ensuring that they are sent to the appropriate processing centre directly; and
• create a new offshore temporary visa class and subclass to enable persons between the ages of 18 and 31, who meet the requirements of an arrangement entered into by the Australian Government and the government of a foreign country, to work and holiday in Australia.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 1 November 2002. Amendments to Migration Regulations generally commence on 1 March, 1 July and 1 November. Having these fixed commencement dates minimises the impact on clients and staff.
ATTACHMENT A
Subsection 504(1) of 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, the following provisions may apply:
• subsection 31 (1) of the Act provides that the regulations may prescribe classes of visas;
• subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class;
• subsection 31(4) of the Act provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;
• subsection 31(5) of the Act provides that the regulations may specify that a visa is a visa of a particular class;
• subsection 40(1) of the Act provides that the regulations may provide that visas, or visas of a specified class, may only be granted in specified circumstances;
• subsection 41 (1) of the Act provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;
• subsection 45B(1) of the Act provides that the regulations may prescribe the amount that is the amount of visa application charge, not exceeding the visa application charge limit;
• subsection 45B(2) of the Act provides that the amount prescribed as the visa application charge may be nil;
• subsection 45C(1) of the Act provides that the regulations may prescribe that the visa application charge is payable in instalments, how those instalments are to be calculated, and when those instalments are payable;
• subsection 46(1) of the Act provides that an application is valid if, inter alia, it satisfies the criteria and requirements prescribed under that section;
• subsection 46(2) of the Act provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations, the application is taken to have been validly made;
• subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;
• subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe:
- the circumstances that must exist for an application for a visa of a specified class to be a valid application;
- how an application for a visa of a specified class must be made;
- where an application for a visa of a specified class must be made; and
- where an applicant must be when an application for a visa of a specified class is made;
• subsection 52(1) provides that a visa applicant or interested person must communicate with the Minister in the prescribed way;
• subsection 52(2) provides that the regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way; and
• subsection 71 (1) of the Act provides that evidence of a visa is to be given in a way prescribed for giving the evidence.
ATTACHMENT B
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 6).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 November 2002.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994.
Regulation 4 - Transitional
This regulation provides that amendments made by items [1301], [1302], [1308], [1309] and [1310] are to apply to applications for a visa made, but not finally determined, before 1 November 2002 or applications made on or after 1 November 2002.
Amendments made by items [1101], [1102], [1303], [1304], [1305], [1306] and [1307] are to apply to applications for a visa made on or after 1 November 2002.
Schedule 1 - Amendments
Part 1 - Amendments of Parts 1 and 2
Item [1101] - Paragraph 1.20(2)(e)
This item amends paragraph 1.20(2)(e).
Paragraph 1.20(2)(e) requires the sponsor of an applicant for an Extended Eligibility (Temporary) (Class TK) visa to undertake to assist the applicant financially and for accommodation for 2 years after the visa is granted.
This item clarifies that the sponsor must undertake to provide this assistance for 2 years immediately after the visa is granted, if the applicant is inside Australia at the time of grant. If the applicant is outside Australia at the time of grant, the sponsor must undertake to assist the applicant for 2 years immediately after the applicant's first entry into Australia after the visa is granted.
This change is consequential to another amendment made by these Regulations which enables an Extended Eligibility (Temporary) (Class TK) visa to be granted inside Australia as well as outside Australia.
Item [1102] - Paragraph 2.08B(1)(b)
This item amends paragraph 2.08B(1)(b) to provide that a dependent child of the applicant for a temporary visa can be added to the application after it is made but before it is decided.
The amendment precludes a dependent child of an applicant for a temporary visa from being added to the application after a decision to grant the visa has been made.
Part 2 - Amendments of Schedule 1
Item [1201] - Paragraph 1124(3)(a)
This item replaces paragraph 1 124(3)(a) of Schedule 1 with new paragraphs 1124(3)(a) and 1124(3)(aa). The new paragraphs set out requirements in relation to an application for a Parent (Migrant) (Class AX) visa.
New paragraph 1124(3)(a) states that an application must be made in Australia but not in immigration clearance.
New paragraph 1124(3)(aa) requires that an application must be made by either posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice, or by having the application delivered by a courier service to the address specified in a Gazette Notice.
These provisions require that the application itself must be made in Australia by one of the methods set out in new paragraph 1124(3)(aa). They do not affect provisions regarding the location of the applicant at the time of application or the time of visa grant.
In order to process Parent (Migrant) (Class AX) visa applications effectively, such applications have in recent times been forwarded to a centralised processing centre in Australia. This system has been effective. These amendments ensure even more effective and efficient processing by requiring the applications to be sent directly to the processing centre.
Item [1202] - Paragraph 1211(3)(a)
This item amends paragraph 1211(3)(a) so that an application for an Extended Eligibility (Temporary) (Class TK) visa can be made inside Australia, but not in immigration clearance, as well as outside Australia.
These amendments ensure that children who can no longer be added to their parent's decided provisional partner visa applications, as a result of amendments made by these Regulations to regulation 2.08B, are able to apply for a visa. The amendments also remove an anomaly whereby there was no visa pathway for dependent children who are in Australia and whose parents hold a provisional partner visa for which they applied.
Item [1203] - After item 1224
This item inserts new item 1224A into Schedule 1 to the Migration Regulations.
New item 1224A establishes the Work and Holiday (Temporary) (Class US) visa, containing Subclass 462 (Work and Holiday).
The Work and Holiday (Temporary) (Class US) visa is a temporary offshore visa enabling persons between the ages of 18 and 31 who meet the requirements of an arrangement entered into by the Australian Government and the government of a foreign country, and who have the endorsement of the government of that country, to work and holiday in Australia for a period of up to one year.
The criteria for obtaining a Work and Holiday (Temporary) (Class US) visa are similar to those of the Working Holiday (Temporary) (Class TZ) visa. The major differences are that an applicant for the Work and Holiday (Temporary) (Class US) visa is required to meet the terms of an agreement entered into by the Australian Government with the government of a foreign country, and also have the agreement of that foreign country to stay in Australia under the arrangement.
Additional differences are that an applicant for a Work and Holiday (Temporary) (Class US) visa is required to have functional English, be the holder of a degree or diploma, have been employed in their usual occupation, being an occupation for which in Australia a diploma or degree is required, for at least 6 months of a 2 year period prior to making the application, and not be an AusAID student or AusAID recipient.
New subitem 1224A(1) provides that an application for a Work and Holiday (Temporary) (Class US) visa is to be made on approved form 1208.
New subitem 1224A(2) provides that the first instalment of the visa application charge is $160. No second instalment is payable.
New subitem 1224A(3) requires the application to be made outside Australia, and the applicant to be outside Australia at the time of making the application.
Part 3 - Amendments of Schedule 2
Item [1301] - Clause 100.321
This item amends clause 100.321 to correct an anomaly whereby certain holders of Subclass 445 (Dependent Child) visas were unable to be granted a Subclass 100 (Spouse) visa, despite the grant of such a visa to the person's parent.
The amendment enables a holder of a Subclass 445 visa, granted on the basis of being a dependent child of a parent who holds a Subclass 445 visa, to meet the criteria for the grant of a Subclass 100 (Spouse) visa once the parent is granted a Subclass 100 visa.
The eligibility for grant of a Subclass 100 visa of persons holding Subclass 309 visas, or Subclass 445 visas granted on the basis of being the dependent child or member of the family unit of a Subclass 309 visa holder, remains unaffected by the amendment.
The amendment also restructures clause 100.321.
Item [1302] - Clause 110.321
This item amends clause 110.321 to correct an anomaly whereby certain holders of Subclass 445 (Dependent Child) visas were unable to be granted a Subclass 110 (Interdependency) visa, despite the grant of such a visa to the person's parent.
The amendment enables a holder of a Subclass 445 visa, granted on the basis of being a dependent child of a parent who holds a Subclass 445 visa, to meet the criteria for the grant of a Subclass 110 (Interdependency) visa once the parent is granted a Subclass 110 visa.
The eligibility for grant of a Subclass 110 visa of persons holding Subclass 310 visas, or Subclass 445 visas granted on the basis of being the dependent child or member of the family unit of a Subclass 310 visa holder, remains unaffected by the amendment.
The amendment also restructures clause 110.321.
Item [1303] - Clause 445.1
This item makes a technical amendment to Division 445.1 to insert the clause number 445.111 before the first provision in the Division to make it consistent with the format of other visa subclasses in the Migration Regulations.
Item [1304] - Clause 445.211
Item [1305] - Clause 445.411
Item [1306] - After clause 445.411
These items:
• amend clause 445.211 to remove the requirement that the applicant be outside Australia at the time of application;
• amend clause 445.411 to make it a requirement that if the application is made outside Australia, the applicant must be outside when the visa is granted; and
• insert new clause 445.412 to make it a requirement that if the application is made inside Australia the applicant must be inside Australia when the visa is granted.
These amendments are all consequential to other amendments made by these Regulations which allow an application for an Extended Eligibility (Temporary) (Class TK) visa to be made inside as well as outside Australia (see paragraph 1211(3)(a)).
Item [1307] - After Part 461
This item inserts new Part 462 into Schedule 2 to the Migration Regulations, setting out the criteria that an applicant for a Work and Holiday (Temporary) (Class US) visa must meet to be eligible for the grant of a Subclass 462 (Work and Holiday) visa.
New clause 462.111 sets out the defined terms for new Subclass 462 (Work and Holiday).
New Division 462.2 contains a note explaining that all applicants for the visa must meet the primary criteria.
New Subdivision 462.21 sets out the primary criteria to be satisfied at the time of application. The criteria are as follows:
• the applicant must not have dependent children;
• the applicant must be at least 18 years old but not have turned 31 years old;
• the applicant must hold a valid passport issued by a foreign country specified in a Gazette Notice, being a foreign country with which the Australian Government has an arrangement;
• the application must be made:
- if the applicant holds a valid passport issued by a foreign country specified in a Gazette Notice for the purposes of paragraph 462.212(a) - in any foreign country; or
- if the applicant holds a valid passport issued by a foreign country specified in a Gazette Notice for the purposes of paragraph 462.212(b)
- in the foreign country specified in the Notice for that kind of passport;
• the applicant must provide a letter from the foreign government with which an arrangement exists that includes a statement to the effect that the government has agreed to the applicant's stay in Australia under the arrangement;
• the applicant must not have previously entered Australia as the holder of a Work and Holiday (Temporary) (Class US) visa; and
• the Minister must be satisfied that the applicant:
- has at least functional English;
- meets the requirements of an arrangement between the Australian Government and the government of a foreign country specified in a Gazette Notice;
- seeks to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia;
- has sufficient money for a fare to depart Australia and for personal support for the purposes of a working holiday; and
- has reasonable prospects of obtaining employment in Australia.
New Subdivision 462.22 sets out the primary criteria to be satisfied at the time of decision.
New paragraph 462.221 (a) requires all applicants to meet the following time of decision criteria:
• the applicant must continue to have no dependent children;
• the applicant must continue to hold a valid passport issued by a foreign country specified in a Gazette Notice;
• the applicant must continue to have at least functional English;
• the applicant must continue to meet the requirements of an arrangement between the Australian Government and the government of a foreign country specified in a Gazette Notice;
• the applicant must continue to seek to enter or remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia;
• the applicant must continue to have sufficient money for a fare to depart Australia and for personal support for the purposes of a working holiday; and
• the applicant must continue to have reasonable prospects of obtaining employment in Australia.
New paragraphs 462.221 (b), (c), (d) and (e), and new clauses 462.222 and 462.223, additionally require the applicant to satisfy the following time of decision criteria:
• the applicant must satisfy public interest criteria relating to character, national security, the prejudicing of relations between Australia and a foreign country, the proliferation of weapons of mass destruction, debts owed to the Australian Government, health, the likelihood that the applicant will remain in Australia after the expiry of the visa, and exclusion periods;
• the applicant must be the holder of a degree or diploma;
• the applicant must have been employed in an occupation for a continuous period of 6 months during the 2 years immediately before applying for a visa being an occupation for which, in Australia, a diploma or degree is required;
• the applicant must not be an AusAID student or AusAID recipient;
• if the applicant has been in Australia, he or she must have satisfied special return criteria 5001 and 5002; and
• the Minister must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted.
New clause 462.411 provides that the applicant must be outside Australia at the time the visa is granted.
New clause 462.511 provides that the visa is a temporary visa, allowing the holder to travel to and enter Australia within 3 months after the date of the grant of the visa, and to travel to enter and remain in Australia until 12 months after the date of first entry to Australia.
New clauses 462.611 and 462.612 provide that conditions 8108, 8201 and 8503 must be imposed on the visa, and conditions 8303, 8501 and 8516 may be imposed on the visa.
New clause 462.711 provides that the visa is evidenced by a visa label affixed to a valid passport.
Item [1308] - Subparagraph 801.321(a)(i)
This item amends clause 801.321 to correct an anomaly whereby certain holders of Subclass 445 (Dependent Child) visas were unable to be granted a Subclass 801 (Spouse) visa, despite the grant of such a visa to the person's parent.
The amendment enables a holder of a Subclass 445 visa, granted on the basis of being a dependent child of a parent who holds a Subclass 445 visa, to meet the criteria for the grant of a Subclass 801 (Spouse) visa once the parent is granted a Subclass 100 visa.
The eligibility for grant of a Subclass 801 visa of persons holding Subclass 820 visas, or Subclass 445 visas granted on the basis of being the dependent child or member of the family unit of a Subclass 820 visa holder, remains unaffected by the amendment.
Item [1309] - Subdivision 814.31 (second-occurring), heading
This item makes a technical amendment to substitute the second occurring reference to Subdivision 814.31 with a reference to Subdivision 814.32 to rectify a typographical error in the Migration Regulations.
Item [1310] - Subparagraph 814.321(a)(i)
This item amends clause 814.321 to correct an anomaly whereby certain holders of Subclass 445 (Dependent Child) visas were unable to be granted a Subclass 814 (Spouse) visa, despite the grant of such a visa to the person's parent.
The amendment enables a holder of a Subclass 445 visa, granted on the basis of being a dependent child of a parent who holds a Subclass 445 visa, to meet the criteria for the grant of a Subclass 814 (Spouse) visa once the parent is granted a Subclass 814 visa.
The eligibility for grant of a Subclass 814 visa of persons holding Subclass 826 visas, or Subclass 445 visas granted on the basis of being the dependent child or member of the family unit of a Subclass 826 visa holder, remains unaffected by the amendment.