MIGRATION AMENDMENT REGULATIONS 2003 (NO. 7) 2003 NO. 239

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2003 (NO. 7) 2003 NO. 239

EXPLANATORY STATEMENT

STATUTORY RULES 2003 NO. 239

Issued by the Minister for Immigration and Multicultural
and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2003 (No. 7)

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 provisions listed in Attachment A.

The purpose of these Regulations is to amend the Migration Regulations 1994 (Migration Regulations) to specify where visa applications for certain visas must be made, amend the criteria for the grant of certain visa subclasses, prescribe the evidence of identity to be provided by certain non-citizens upon entering Australia, amend the list of persons who have a prescribed status for a special purpose visa, expand the definition of member of the family unit for certain distinguished talent visas, expand the information that may be provided concerning passengers travelling to other countries and rectify minor technical errors in the Migration Regulations.

These Regulations effect changes to the Migration Regulations to:

• require all applicants seeking to be granted a Subclass 832 (Close Ties), Subclass 858 (Distinguished Talent), Subclass 151 (Former Resident) or Subclass 124 (Distinguished Talent) visa to make an application by either posting the application or having the application delivered by courier service, to an address specified in a Gazette Notice. These amendments are to expedite the processing of these applications;

• allow applicants for a Subclass 410 (Retirement) visa who have ever held a Subclass 410 visa in the past to be eligible to meet streamlined criteria for the grant of the visa;

• replace the requirement that certain sponsors of applicants for Subclass 101 (Child), Subclass 102 (Adoption) or Subclass 802 (Child) visas be Australian permanent residents with the requirement that they be holders of a permanent visa;

• provide for the granting of Labour Agreement or Business (Long Stay) visas where an applicant has been nominated by a business which is a party to an Invest Australia Supported Skills Agreement, and to provide for the discontinuance of the current Regional Headquarter Agreement program;

• enable safety inspectors, employed by a foreign government to inspect the safety procedures of international air carriers or the safety of an aircraft, to be treated in the same manner as aircrew members and be granted a special purpose visa. This is in accordance with paragraph 3.78 of Annex 9 to the International Civil Aviation Organisation Convention;

• enable members of the armed forces or civilian component of the armed forces of France and Turkey to be granted special purpose visas once Australia has entered a Status of Forces agreement with those countries;

• amend the definition of 'member of the family unit' to enable applicants who are aged less than 18 years to include a parent and members of a parent's family unit (which may include that parent's spouse) in applications for permanent Distinguished Talent visas and modify certain provisions for the grant of these visas;

• require members of crew of non-military ships to show an identity document and a passport as evidence of identity upon entering Australia;

• expand the list of information which may be provided by Australia to other countries in respect of passengers travelling to or to and beyond that country; and

• make a number of minor technical amendments.

Details of these Regulations are set out in Attachment B.

The Act specifies no conditions that need to be met before the power to make these Regulations may be exercised.

The Regulations commence on 1 November 2003. These changes constitute the "November Round". Amendments to the Migration Regulations are generally consolidated in two rounds per year, July and November, in order to minimise the impact on clients and staff.

0307831A-030903Z

ATTACHMENT A

In addition, the following provisions may apply:

• subsection 31(1) of the Act provides that the regulations are to 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;

• paragraph 33(2)(a) of the Act provides that a non-citizen is taken to have been granted a special purpose visa if the non-citizen has a prescribed status or is a member of a class of persons that has a prescribed status;

• 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;

• paragraph 41(2)(b) of the Act 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 by the holder, which, without limiting the generality of this paragraph, may be restriction on doing any work, work other than specified work or work of a specified kind;

• section 46 of the Act deals with when an application for a visa is a valid application; in particular:

- 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)(b) provides that, without limiting subsection 46(3), the regulations may also prescribe how an application for a visa of a specified class must be made; and

- paragraph 46(4)(c) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe where an application for a visa of a specified class must be made;

• subsection 166(1) requires a person, where that person is a non-citizen, who enters Australia to show a clearance officer evidence of the person's identity and of a visa that is in effect and is held by the person, and any information required to be given by the Act or the regulations;

• subsection 166(2) requires a person to comply with subsection 166(1) in a prescribed way;

• section 504 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act, and specifically:

- paragraph 504(1)(a) of the Act provides that the regulations may provide for the charging of fees in respect of any matter under the Act;

- paragraph 504(1)(c) of the Act provides that the regulations may make provision in relation to the furnishing of information by and obtaining the information from, persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia;

- paragraph 504(1)(e) of the Act provides that the Governor-General may make regulations which make provision for and in relation to the giving of documents to, the lodging of documents with or the service of documents on, the Minister, the Secretary or any other person or body, for the purposes of this Act; and

- paragraph 504(1)(d) of the Act provides that the regulations may make provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected with respect to passengers.

ATTACHMENT B

Regulation 1 - Name of Regulations

This regulation provides that these regulations are the Migration Amendment Regulations 2003 (No. 7).

Regulation 2 - Commencement

This regulation provides that these regulations commence on 1 November 2003.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedules 1 to 6 to these regulations amend the Migration Regulations 1994 (the Migration Regulations).

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by items [3] to [5] and items [8] to [15] of Schedule 1, all of Schedule 2, items [1] to [5], items [7] to [17] and items [19] to [29] of Schedule 3 and all of Schedule 6 to these regulations apply in relation to an application for a visa made on or after 1 November 2003.

Subregulation 4(2) provides that the amendments made by item [18] of Schedule 3 and all of Schedule 4 apply 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 (the Act)), before 1 November 2003; or

• made on or after 1 November 2003.

Subregulation 4(3) provides that the amendments made by items [1], [2] and [16] of Schedule 1 apply to an airline crew member who is in Australia, or enters Australia, on or after 1 November 2003.

Subregulation 4(4) provides that the amendment made by item [2] of Schedule 5 applies to an airline crew member who enters Australia on or after 1 November 2003.

Subregulation 4(5) provides that the amendment made by item [3] of Schedule 5 applies to a member of the crew of a non-military ship who enters Australia on or after 1 November 2003.

Schedule 1 - Amendments of Parts 1, 2 and 3

Item [1] - Regulation 1.03, after definition of aged parent

This item inserts the definition of aircraft safety inspector in regulation 1.03 of Part 1 of the Migration Regulations.

This item defines an aircraft safety inspector to mean a person who:

• is employed by a foreign government to inspect the safety procedures of international air carriers or the safety of aircraft; and

• travels to Australia on an aircraft in the course of that employment; and

• will depart Australia on an aircraft in the course of that employment or as a passenger.

Paragraph (a) of the definition of aircraft safety inspector recognises that there are at least two types of safety inspectors; those who inspect the procedures of the international air carrier, and those who inspect the safety of the aircraft. It also recognises that there could be a safety inspector that inspects both the procedures of the international air carrier and the safety of the aircraft.

Paragraph (b) and (c) of the definition ensure that an aircraft safety inspector only includes a person who travels to Australia in the course of their employment as an aircraft safety inspector and departs in the course of that employment or as a passenger.

A definition of aircraft safety inspector is necessary as without these amendments an aircraft safety inspector would not be defined as an airline crew member in regulation 1.03 of Part 1 of the Migration Regulations. These amendments mean that an aircraft safety inspector as an airline crew member holds a prescribed status for a Special Purpose Visa in accordance with regulation 2.40 of Part 2 of the Migration Regulations.

Item [2] - Regulation 1.03, definition of airline crew member

This item substitutes the definition of an airline crew member in regulation 1.03 of Part 1 of the Migration Regulations with a new definition of airline crew member.

Paragraph (a) of the definition of airline crew member provides that an airline crew member is a person who:

• is employed by an international air carrier as an aircrew member; and

• travels to Australia in the course of his or her employment as a member of the crew of an aircraft (in accordance with paragraph (b) of the definition of 'member of the crew' in section 5 of Part 1 of the Act); and

• will depart Australia in the course of his or her employment as a member of the crew of, or a passenger on, an aircraft.

The purpose of new paragraph (b) of the definition of airline crew member in regulation 1.03 is to include an aircraft safety inspector in the definition of an airline crew member in accordance with a recommendation made in paragraph 3.78 of Annex 9 of the ICAO Convention.

A definition of 'airline crew member' is necessary as airline crew members hold a prescribed status for a Special Purpose Visa in accordance with regulation 2.40 of Part 2 of the Migration Regulations.

Item [3] - Regulation 1.03, definition of airline positioning crew member, paragraph (c)

This item makes a minor technical amendment by omitting the word 'who' in paragraph (c) of the definition of airline positioning crew member in regulation 1.03 of Part 1 of the Migration Regulations, in order to make the definition of airline positioning crew member grammatically correct.

Item [4] - Regulation 1.03, after definition of Hong Kong

This item inserts the definition of IASS agreement into Regulation 1.03 of Part 1 of the Migration Regulations. This new definition provides that IASS agreement means an agreement mentioned in regulation 1.16B of Part 1 of the Migration Regulations.

Item [5] - Regulation 1.03, definition of RHQ agreement

This item substitutes the definition of RHQ agreement in regulation 1.03 of Part 1 of the Migration Regulations with a new definition of RHQ agreement. This new definition provides that RHQ agreement means an agreement mentioned in regulation 1.16A of Part 1 of the Migration Regulations and that is made before 1 November 2003.

The purpose of this amendment is to allow visa applications to continue to be made under RHQ agreements (that is, Regional Headquarter agreements) made prior to the commencement of these regulations. It is intended that no further RHQ agreements will be made after 1 November 2003. However, as RHQ agreements are valid for up to 5 years, this amendment will allow applications to continue to be made during the period of validity of an agreement made prior to 1 November 2003.

Item [6] - Regulation 1.03, definition of SOFA forces civilian component member, paragraph (a)

Item [7] - Regulation 1.03, definition of SOFA forces member, paragraph (a)

These items substitute the respective paragraphs (a) of the definitions of SOFA forces civilian component member and SOFA forces member in regulation 1.03 of Part 1 of Schedule 1 to the Migration Regulations with two new paragraphs (a).

These amendments insert references to France and Turkey into both definitions so that a member of the civilian component of the armed forces of France or Turkey and a member of the armed forces of France or Turkey can be granted a special purpose visa if Australia has entered a Status of Forces Agreement with that country.

Paragraph 33(2)(a) of the Act provides that a non-citizen is taken to have been granted a special purpose visa if the non-citizen has a prescribed status or is a member of a class of persons that has a prescribed status.

Regulation 2.40 of the Migration Regulations provides that SOFA forces civilian component members and SOFA forces members have a prescribed status.

Item [8] - Subregulation 1.12(1)

This item amends subregulation 1.12(1) of Part 1 of the Migration Regulations by omitting the reference to subregulation (2), and inserting a reference to subregulations (2), (6) and (7).

New subregulation 1.12(1) provides that subject to subregulation (2), (6) and (7), a person is a member of the family unit of another person (called the family head) if the person is a person specified in paragraph 1.12(1)(a), (b), (c), (d) or (e).

This amendment is consequential to new subregulations 1.12(6) and (7) inserted by these Regulations, which provide alternative definitions of member of the family unit.

Item [9] - After subregulation 1.12(5)

This item inserts new subregulations 1.12(6) and (7) into Part 1 of the Migration Regulations.

The purpose of new subregulations (6) and (7) is to enable an applicant aged less than 18 years of age to include a parent and the members of the parent's family unit (which may include the other parent) in an application for a Distinguished Talent (Migrant) (Class AL) visa or Distinguished Talent (Residence) (Class BX) visa.

New subregulation 1.12(6) relates to applications for Distinguished Talent (Migrant) (Class AL) visas. It provides that in addition to the definition of member of the family unit in subregulation 1.12(1), a person is the member of the family unit of an applicant for a Distinguished Talent (Migrant) (Class AL) visa who has not turned 18 years old at the time of application if:

• a parent of the applicant has made a combined application with the applicant for the Distinguished Talent (Migrant) (Class AL) visa; and

• the person is a person described in one of the new subparagraphs 1.12(6)(b)(i) to (x).

New subparagraphs 1.12(6)(b)(i) to (x) relate to a person who is a parent of the applicant, a spouse of that parent, a dependent child of that parent or of a spouse of that parent, a dependent child of a dependent child of that parent or the spouse of that parent, or a relative of that parent or the spouse of that parent.

New Paragraph 1.12(6)(c) limits the operation of new subregulation 1.12(6) to circumstances where no other person is being treated as a member of the family unit of the applicant in relation to the applicant's application for the Distinguished Talent (Migrant) (Class AL) visa, in accordance with subregulation 1.12(1). Subregulation 1.12(1) provides an alternative definition of member of the family unit. Thus new paragraph 1.12(6)(c) prevents a person satisfying new subregulation 1.12(6) if another person is already being treated as a member of the family unit of an applicant for a Distinguished Talent (Migrant) (Class AL) visa under subregulation 1.12(1)

The intention of new paragraph 1.12(6)(c) is to prevent an applicant for a Distinguished Talent (Migrant) (Class AL) visa who is aged less than 18 years from including their parent and members of the parent's family unit under subregulation 1.12(6) if they have already included a spouse and or dependents under subregulation 1.12(1) as members of the family unit in relation to this application.

New paragraph 1.12(6)(d) limits the operation of new subregulation 1.12(6) to circumstances where no other parent of the applicant is being treated as a member of the family unit of the applicant in relation to the applicant's application for a Distinguished Talent (Migrant) (Class AL) visa, in accordance with subregulation 1.12(6).

New paragraph 1.12(6)(d) reflects policy intention that where both parents of the applicant are living together as part of the same family unit, both parents (and any other members of their family unit) will satisfy new regulation 1.12(6) and may be eligible for the grant of a Subclass 124 (Distinguished Talent) visa. However, where the parents of the applicant are not living together within the same family unit, only one parent and the members of the family unit of that parent will satisfy new regulation 1.12(6) and may be eligible for the grant of a Subclass 124 (Distinguished Talent) visa.

The new note inserted after new subregulation 1.12(6) is intended to clarify the meaning of new paragraphs 1.12(6)(c) and 1.12(6)(d).

New subregulation 1.12(7) applies to applications for Distinguished Talent) (Class BX) visas. It provides that in addition to the definition of member of the family unit in subregulation 1.12(1), a person is the member of the family unit of an applicant for a Distinguished Talent (Residence) (Class BX) visa who has not turned 18 years old at the time of application if:

• a parent of the applicant has made a combined application with the applicant for the Distinguished Talent (Residence) (Class BX) visa; and

• the person is a person described in one of the new subparagraphs 1.12(7)(b)(i) to (x).

New subparagraphs 1.12(7)(b)(i) to (x) relate to a person who is a parent of the applicant, a spouse of that parent, a dependent child of that parent or of a spouse of that parent, a dependent child of a dependent child of that parent or the spouse of that parent, or a relative of that parent or the spouse of that parent.

New Paragraph 1.12(7)(c) limits the operation of new subregulation 1.12(7) to circumstances where no other person is being treated as a member of the family unit of the applicant in relation to the applicant's application for the Distinguished Talent (Residence) (Class BX) visa, in accordance with subregulation 1.12(1). Subregulation 1.12(1) provides an alternative definition of member of the family unit. Thus new paragraph 1.12(7)(c) prevents a person satisfying new subregulation 1.12(7) if another person is already being treated as a member of the family unit of an applicant for a Distinguished Talent (Residence) (Class BX) visa under subregulation 1.12(1)

The intention of new paragraph 1.12(7)(c) is to prevent an applicant for a Distinguished Talent (Residence) (Class BX) visa who is aged less than 18 years from including their parent and members of the parent's family unit under new subregulation 1.12(7) if they have already included a spouse and or dependents under new subregulation 1.12(1) as members of the family unit in relation to this application.

New paragraph 1.12(7)(d) limits the operation of new subregulation 1.12(7) to circumstances where no other parent of the applicant is being treated as a member of the family unit of the applicant in relation to the applicant's application for a Distinguished Talent (Residence) (Class BX) visa, in accordance with new subregulation 1.12(7).

New paragraph 1.12(7)(d) reflects policy intention that where both parents of the applicant are living together as part of the same family unit, both parents (and any other members of their family unit) will satisfy new regulation 1.12(7) and may be eligible for the grant of a Subclass 858 (Distinguished Talent) visa. However, where the parents of the applicant are not living together within the same family unit, only one parent and the members of the family unit of that parent will satisfy new regulation 1.12(6) and may be eligible for the grant of a Subclass 858 (Distinguished Talent) visa.

The new note inserted after new subregulation 1.12(7) is intended to clarify the meaning of paragraphs 1.12(7)(c) and 1.12(7)(d).

Item [10] - After regulation 1.16A

This item inserts new regulation 1.16B into Part 1 of the Migration Regulations. New regulation 1.16B provides that if an organisation, that has its head office outside Australia, wishes to make a significant investment in Australia, the Immigration Minister and the Industry Minister may enter into an agreement with the organisation to provide for the entry to, and stay in, Australia of employees of the organisation. These agreements are to be known as Invest Australia Supported Skills agreements or IASS agreements.

The purpose of establishing the IASS agreement program in the Migration Regulations is to facilitate the management and administration of significant direct foreign investment in Australia by permitting management and specialist employees of overseas organisations to obtain either temporary or permanent visas to travel to, enter and remain in Australia.

Item [11] - Subregulations 2.07AG(3) and (4)

This item makes a technical amendment by omitting subregulations 2.07AG (3) and (4) of Part 2 of the Migration Regulations. Subregulations 2.07AG (3) and (4) do not relate to applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05(5), as the heading to regulation 2.07AG implies. These provisions have been relocated to new regulation 2.07AI, inserted by these Regulations.

Item [12] - After regulation 2.07AH

This item inserts new regulation 2.07AI into Part 2 of the Migration Regulations. Subregulations 2.07AG(3) and (4) of Part 2 of the Migration Regulations have been relocated to become new subregulations 2.07AI(1) and (2).

New subregulation 2.07AI(1) provides that for section 46 of the Act, an application for a substantive visa by a person who has, at any time since last entering Australia, held a Subclass 173 (Contributory Parent (Temporary)) visa is a valid application only if the application is for:

• a Contributory Parent (Migrant) (Class CA) visa; or

• a Medical Treatment (Visitor) (Class UB); or

• a protection visa.

New subregulation 2.07AI(2) provides that for section 46 of the Act, an application for a substantive visa by a person who has, at any time since last entering Australia, held a Subclass 884 (Contributory Aged Parent (Temporary)) visa is a valid application only if the application is for:

• a Contributory Aged Parent (Residence) (Class DG) visa; or

• a Medical Treatment (Visitor) (Class UB); or

• a protection visa.

Item [13] - Subregulation 2.08C(6)

This item substitutes subregulation 2.08C(6) in Part 2 of the Migration Regulations with new subregulation 2.08C(6). New subregulation 2.08C(6) states that subregulation 2.08C(7) applies to an applicant who seeks to enter Australia in accordance with a labour agreement, an RHQ agreement or an IASS agreement if Immigration has received evidence of the applicant's appointment by an employer authorised under the labour agreement, RHQ agreement or IASS agreement to recruit persons. The purpose of new subregulation 2.08C(6) is to include IASS agreements.

Item [14] - Subregulation 2.40(9), subheading

This item substitutes the subheading to subregulation 2.40(9) of Part 2 of the Migration Regulations, with the new subheading "Airline positioning crew members".

The purpose of this amendment is to make the new subheading "Airline positioning crew members" consistent with terminology used elsewhere in the Migration Regulations, such as paragraph 2.40(1)(l).

Item [15] - Subregulation 2.40(10), subheading

This item substitutes the subheading to subregulation 2.40(10) of Part 2 of the Migration Regulations with a new subheading "Airline crew members".

The purpose of this amendment is to make the new subheading "Airline crew members" consistent with terminology used elsewhere in the Migration Regulations, such as paragraph 2.40(1)(m).

Item [16] - Paragraphs 2.40(10)(b) and (c)

This item substitutes paragraphs 2.40(10)(b) and (c) of Part 2 of the Migration Regulations with new paragraphs 2.40(10)(b) and (c).

New paragraph 2.40(10)(b) provides that a person who is an airline crew member (in accordance with paragraph 2.40(1)(m) of Part 2 of the Migration Regulations) has a prescribed status for 30 days, beginning when the person disembarks from the aircraft on which the person travelled to Australia, if and only if the person:

• holds a valid airline identity card issued by the person's employer; or

• if the person is an aircraft safety inspector - a valid government identity document showing that the person is employed by a foreign government, or an ICAO Safety Inspector Certificate.

The purpose of new paragraph 2.40(10)(b) is to enable a person who is an airline crew member to hold a prescribed status if they hold a valid airline identity card or, if they are an aircraft safety inspector, a valid government identity document showing that the person is employed by a foreign government, or an ICAO Safety Inspector Certificate.

New paragraph 2.40(10)(c) clarifies that a person who is an airline crew member (in accordance with paragraph 2.40(1)(m) of Part 2 of the Migration Regulations) has a prescribed status for 30 days, beginning when the person disembarks from the aircraft on which the person travelled to Australia, if the person is included in a list of members of the crew of the aircraft provided to Immigration by or for the international air carrier that operates the aircraft.

Item [17] - After paragraph 3.10(4)(c)

This item inserts additional data elements in subregulation 3.10(4) of Part 3 of the Migration Regulations. These additional data elements are:

• sex;

• class and subclass of visa; and

• when the visa ceases to be in effect.

Subregulation 3.10(4) lists the type of information which the Minister may provide to another country in respect of passengers travelling to or to and beyond that country if the Minister is satisfied that the provision of information would facilitate the handling of aircraft or of passengers travelling to that country.

The purpose of this amendment is to expand the list of information that the Minister may provide to other countries under subregulation 3.10(4).

Item [18] - After subregulation 3.10(4)

This item inserts a note after subregulation 3.10(4) of Part 3 of the Migration Regulations clarifying that the information to be disclosed under subregulation 3.10(4) relates to Australian visas issued in accordance with the Act.

Schedule 2 - Amendments of Schedule 1

Item [1] - Paragraph 1112(3)(a)

This item substitutes paragraph 1112(3)(a) of Part 1 of Schedule 1 to the Migration Regulations with new paragraph 1112(3)(a). New paragraph 1112(3)(a) provides that an application for a Distinguished Talent (Migrant) (Class AL) visa must be made by:

• posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice; or

• having the application delivered by courier service to an address specified in a Gazette Notice.

The amendments made by this item will expedite the processing of Distinguished Talent (Migrant) (Class AL) visa applications by centralising processing at a processing centre.

Item [2] - After Paragraph 1113(3)(a)

This item inserts new paragraph 1113(3)(aa) into item 1113 of Part 1 of Schedule 1 to the Migration Regulations. New paragraph 1113(3)(aa) provides that an application for a Distinguished Talent (Residence) (Class BX) visa must be made by:

• posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice; or

• having the application delivered by a courier service to an address specified in a Gazette Notice.

The amendments made by this item will expedite the processing of Distinguished Talent (Residence) (Class BX) visa applications by centralising processing at a processing centre.

Item [3] - After paragraph 1115(3)(a)

This item inserts new paragraph 1115(3)(aa) into item 1115 of Part 1 of Schedule 1 to the Migration Regulations. New paragraph 1115(3)(aa) provides that an application for a Special Eligibility (Residence) (Class AO) visa by applicants seeking to satisfy the criteria for the grant of a Subclass 832 (Close Ties) visa must be made by:

• posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice; or

• having the application delivered by a courier service to an address specified in a Gazette Notice.

The amendments made by this item will expedite the processing of Subclass 832 (Close Ties) applications by centralising processing at a processing centre.

Item [4] - Paragraph 1118(3)(a)

This item substitutes paragraph 1118(3)(a) of Part 1 of Schedule 1 to the Migration Regulations. New paragraph 1118(3)(a) provides that an application for a Special Eligibility (Migrant) (Class AR) visa must be made by:

• posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice; or

• having the application delivered by a courier service to an address specified in a Gazette Notice.

The amendments made by this item will expedite the processing of a Special Eligibility (Migrant) (Class AR) visa applications by centralising processing at a processing centre.

Schedule 3 - Amendments of Schedule 2

Item [1] - Subdivision 120.21

This item substitutes Subdivision 120.21 in Part 120 of Schedule 2 to the Migration Regulations with new Subdivision 120.21 which provides primary criteria which must be satisfied by at least one applicant for a Subclass 120 (Labour Agreement) visa at the time of application.

New subclause 120.211(1) requires all applicants, other than applicants mentioned in subclause (5), to meet the requirements of subclause (2), (3) or (4).

New subclause 120.211(2) provides the requirements that an applicant seeking to enter Australia under a labour agreement must meet. An applicant meets the requirements of new subclause 120.211(2) if the applicant seeks to enter Australia to work under a labour agreement, has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement, and has not turned 45 (unless exceptional circumstances apply). New subclause 120.211(3) provides the requirements that an applicant seeking to enter Australia under an RHQ agreement must meet. An applicant meets the requirements of new subclause 120.211(3) if the applicant seeks to enter Australia under an RHQ agreement. Note that the new definition of RHQ agreement means an agreement mentioned in regulation 1.16A of Part 1 of the Migration Regulations and that is made before 1 November 2003. The requirements in new subclauses 120.211(2) and 120.211(3) are the same as the requirements in substituted subclause 120.211(1).

The requirements of new subclause 120.211(4) are met where an applicant has been nominated by an employer for a permanent position in a business in Australia for which there is an IASS agreement, and is a highly skilled person as defined in subregulation 5.19(3) of Part 5 of the Migration Regulations. The requirements in subregulation 5.19(3) relate to formal training and experience, relevant work experience and, where necessary, required qualifications.

New subclause 120.211(5) provides the requirements that must be met where an applicant is taken under regulation 2.08C to have applied for a Labour Agreement (Migrant) (Class AU) visa and who seeks to enter Australia in accordance with a labour agreement. An applicant meets the requirements of new subclause 120.211(5) if the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement, and has not turned 45 at the time of the application for an Independent (Migrant) (Class AT) visa, a Skilled - Independent (Migrant) (Class BN) visa or a Skill Matching (Migrant) (Class BR) visa. The requirements in new subclause 120.211(5) are the same as the requirements in substituted subclause 120.211(2).

Item [2] - Subclause 124.211(1)

This item amends subclause 124.211(1) of Part 124 of Schedule 2 to the Migration Regulations by omitting the reference to subclause (2), (3) or (4), and replacing it with a reference to subclause (2) or (4).

This amendment is consequential to the deletion of subclause (3) by these Regulations.

Item [3] - Subclauses 124.211(2) and (3)

This item substitutes subclauses 124.211(2) and (3) of Part 124 of Schedule 2 to the Migration Regulations with new subclause 124.211(2). The content of subclause 124.211(3) has been incorporated into new subclause 124.211(2).

New subclause 124.211(2) provides that the applicant meets the requirements of this subclause if the applicant:

• has an internationally recognised record of exceptional and outstanding achievement in one of the following areas - a profession, a sport, the arts or academia and research; and

• is currently prominent in the nominated area; and

• would be an asset to the Australian community; and

• would have no difficulty in obtaining employment or in becoming established in Australia in the area; and

• produces a nomination testifying to the applicant's achievement and standing in the area form an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation, having a national reputation in relation to the nominated area; and

• if the applicant is less than 18 years or 55 years and over at the time of application, is able to demonstrate that he or she would be an exceptional benefit to the Australian community.

The purpose of new paragraph 124.211(2)(a) (the first dot point above) is to clarify policy intention that an internationally recognised record of exceptional and outstanding achievement may only be claimed in one of the four areas specified, (a profession, the arts, a sport, and academia and research).

The purpose of new paragraph 124.211(2)(f) (the last dot point above) is to provide additional criteria that must be met by applicants who are aged less than 18 years or 55 years and over. Such applicants must demonstrate that they would provide the Australian community with exceptional benefit.

Item [4] - After clause 124.225

This item inserts new clause 124.226 in Part 124 of Schedule 2 of the Migration Regulations. New clause 124.226 provides that if an applicant is aged less than 18 years, public interest criteria 4017 and 4018 must be satisfied in relation to the applicant.

Public interest criteria 4017 provides that the Minister must be satisfied that:

• the law of the applicant's home country permits the removal of the applicant; or

• each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or

• the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public interest criteria 4018 provides that the Minister is satisfied that there are no compelling reasons to believe that the grant of the visa would not be in the best interests of the applicant.

The purpose of new clause 124.226 is to ensure that where an applicant for a Subclass 858 (Distinguished Talent) is aged less than 18 years of age, the grant of the visa is:

• in accordance with any foreign or Australian laws in relation to where the applicant lives; and

• agreeable to those people who can lawfully determine where the applicant is to live; and

• in the best interests of the applicant.

Item [5] - Division 124.3, note after the heading

This item substitutes the note after the heading to Division 124.3 of Part 124 of Schedule 2 to the Migration Regulations with a new note.

New note 1 provides that the criteria in Division 124.3 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. Thus the purpose of new note 1 is to clarify that applicants who are members of the family unit of a person who satisfies the primary criteria must satisfy the secondary criteria in Division 124.3.

New note 2 provides that in relation to an applicant for a Distinguished Talent (Migrant) (Class AL) visa who is less than 18 years of age, subregulation 1.12(6) (inserted by these Regulations) sets out a specific definition of member of the family unit in addition to the definition of member of the family unit provided in subregulation 1.12(1) of Part 1 of the Migration Regulations. In relation to an applicant aged 18 years of age or over, new note 2 refers to the definition of member of the family unit in subregulation 1.12(1).

Item [6] - Part 173

This item makes a technical amendment by relocating Part 173 after Part 165 of Schedule 2 to the Migration Regulations.

The purpose of this amendment is to provide that Part 173 appears in numerical order in Schedule 2 to the Migration Regulations.

Item [7] - Subclause 410.111(1), definition of established applicant

This item omits the definition of established applicant in subclause 410.111 of Part 410 of Schedule 2 to the Migration Regulations.

The criteria for the grant of a Subclass 410 (Retirement) visa are divided into two streams. One requires particular applicants to satisfy, among other things, certain public interest criteria (including health) and financial requirements. The other requires particular applicants to meet the public interest criteria, but not the health public interest criterion or financial requirements. The purpose of the separate streams was, in 1998, to require higher standards of health and finance for applicants who were granted a Subclass 410 or equivalent visa on or before 30 November 1998 or were granted a Subclass 410 visa on or after 1 December 1998 on the basis of an application made before 1 December 1998 and who have not held a different visa since then. The amendments also exempted existing holders from the more onerous criteria even for subsequent visas.

Subclause 410.111 defines established applicant as an applicant who was granted a Subclass 410 or equivalent visa on or before 30 November 1998 or was granted a Subclass 410 visa on or after 1 December 1998 on the basis of an application made before 1 December 1998.

This amendment is consequential to amendments made by these regulations that extend the less onerous criteria described above so they are available to all applicants who hold or have ever held a Subclass 410 or equivalent visa, not just to established applicants. The definition of established is therefore not required and omitted by this amendment.

Item [8] - Subclause 410.221(8)

This item substitutes subclause 410.221(8) of Part 410 of Schedule 2 to the Migration Regulations with new subclause 410.221(8).

These amendments extend the availability of the less onerous criteria to a larger group of applicants. Without these amendments, the less onerous criteria are only available to applicants who were granted a Subclass 410 or equivalent visa on or before 30 November 1998 or were granted a Subclass 410 visa on or after 1 December 1998 on the basis of an application made before 1 December 1998 and who have not held a different visa since then.

These amendments allow any applicant who holds or has ever held a Subclass 410 visa an exemption from satisfying financial criteria for subsequent 410 visas. This is consistent with the policy intention that once financial requirements are satisfied for the grant of a Subclass 410 visa, they do not need to be re-satisfied for a further Subclass 410 visa.

While applicants for the less onerous stream are required to meet a less onerous health requirement, both groups of applicants will ordinarily be required to undergo health assessment with a relevant medical practitioner for the purposes of detecting public health issues, mainly tuberculosis.

New subclause 410.221(8) sets out the less onerous requirements, including the new health requirements. It provides that an applicant who holds or has ever held a Subclass 410 or an equivalent visa must satisfy this criterion.

New paragraph 410.221(8)(a) retains the original intention that both the applicant and the applicant's spouse must meet the relevant public interest criteria for the applicant to satisfy this criterion.

New paragraphs 410.221(8)(b) and (c) require the applicant and the applicant's spouse to meet certain health requirements.

New paragraph 410.221(8)(d) requires the applicant to provide an undertaking if requested by a Medical Officer of the Commonwealth.

Item [9] - Subclause 410.221(9)

This item amends subclause 410.221(9) of Part 410 of Schedule 2 to the Migration Regulations.

These amendments affect the more onerous criteria to reduce the group of applicants that must satisfy these. Without these amendments, all applicants must meet these requirements unless they were granted a Subclass 410 or equivalent visa on or before 30 November 1998 or were granted a Subclass 410 visa on or after 1 December 1998 on the basis of an application made before 1 December 1998 and have not held a different visa since then.

These amendments provide that only applicants who have never held a Subclass 410 visa an exemption from satisfying financial criteria for subsequent 410 visas. This is consistent with the policy intention that once financial requirements are satisfied for a Subclass 410 visa, they do not need to be re-satisfied for a further Subclass 410 visa.

Subclause 410.221(9) provides that any applicant who does not hold or has never held a Subclass 410 or an equivalent visa must meet the specified financial requirements and the applicant and the applicants spouse must satisfy the specified public interest criteria, including health requirements, in order to satisfy the criterion.

Item [10] - Subclause 410.321(3)

This item substitutes subclause 410.321(3) of Part 410 of Schedule 2 to the Migration Regulations with new subclause 410.321(3).

New subclause 410.321(3) sets out certain public interest criteria, including health requirements, that must be met by the spouse of a person who holds or has ever held a Subclass 410 (Retirement) or equivalent visa. The applicant will therefore be the spouse of a person to whom subclause 410.221(8) applies.

This amendment is consequential to amendments made by these regulations that require a primary applicant who has ever held a Subclass 410 or equivalent visa to meet specified public interest criteria and health requirements, but not financial requirements. The spouse of that applicant must also meet specified public interest criteria.

This amendment provides that in addition to the health requirements that the applicant had to satisfy for the primary applicant to meet subclause 410.221(8), the applicant also needs to meet these requirements in the secondary criteria and sign an undertaking if requested by a Medical Officer of the Commonwealth.

Item [11] - Subclause 410.321 (4)

This item amends subclause 410.321(4) of Part 410 of Schedule 2 to the Migration Regulations.

New subclause 410.321(4) sets out the requirements that must be met by the spouse of a person who does not hold or has never held a Subclass 410 (Retirement) or equivalent visa. The applicant will therefore be the spouse of a person to whom subclause 410.221(9) applies.

This amendment is consequential to amendments made by these regulations that clarify that a primary applicant who does not hold or has never held a Subclass 410 or equivalent visa must meet specified public interest criteria, including health requirements and specified financial requirements. Subclause 410.321(4) provides that the spouse of that primary applicant must give evidence of adequate arrangements for support of the spouse and adequate arrangements in Australia for health insurance and satisfy specified public interest criteria.

Item [12] - Subparagraph 427.222(b)(iii)

This item makes a minor technical amendment to subparagraph 427.222(b)(iii) of Part 427 of Schedule 2 to the Migration Regulations that is consequential to the insertion of new subclause 457.223(10) by these regulations.

Item [13] - Subclause 457.111(2), note

This item substitutes the note in subclause 457.111(2) of Part 457 of Schedule 2 to the Migration Regulations with a new note in subclause 457.111(2). The new note in subclause 457.111(2) retains references to certain terms and adds a reference to IASS agreement.

Item [14] - Subclause 457.212(2)

This item makes a minor technical amendment to subclause 457.212(2) of Part 457 of Schedule 2 to the Migration Regulations that is consequential to the insertion of new subclause 457.223(10) by these regulations.

Item [15] - Subclause 457.223(1)

This item makes a minor technical amendment to subclause 457.223(1) of Part 457 of Schedule 2 to the Migration Regulations which is consequential to the insertion of new subclause 457.223(10) by these regulations.

Item [16] - After subclause 457.223(9)

This item inserts new subclause 457.223(10) in of Part 457 of Schedule 2 to the Migration Regulations. New subclause 457.223(10) provides the requirements that an applicant must meet where he or she applies for a Subclass 457 (Business (Long Stay)) on the basis of an IASS agreement.

New subclause 457.223(10) provides that an applicant meets the requirements of new subclause 457.223(10) if the activity specified in the application is the subject of an IASS agreement, the activity is the subject of an approved business nomination by a business that is a party to the IASS agreement, the applicant is nominated by the business, and the requirements of the IASS agreement have been met in relation to the applicant.

IASS agreements contain details of employment activities and the qualifications and experience that key personnel must have in order to be able to undertake these activities. For the purpose of an application for a Subclass 457 visa, IASS agreements require that available employment activities or positions are included in the Gazetted List of Occupations applicable to Subclass 457 at the time that a nomination is lodged. New subclause 457.223(10) places emphasis on an applicant meeting requirements which relate to the IASS agreement under which he or she is applying.

Item [17] - Paragraph 457.226(1)(b)

This item makes a minor technical amendment to subclause 457.226(1)(b) of Part 457 of Schedule 2 to the Migration Regulations that is consequential to the insertion of new subclause 457.223(10) by these regulations.

Item [18] - Paragraph 470.221(b)

This item amends paragraph 470.221(b) of Part 470 of Schedule 2 to the Migration Regulations. Clause 470.221 of Schedule 2 sets out some of the criteria to be satisfied at the time of decision, by applicants seeking to be granted a Subclass 470 (Professional Development) visa.

New paragraph 470.221(b) provides that at the time of decision, if the applicant has not turned 18, the Minister must be satisfied that exceptional circumstances exist for the grant of the visa.

The purpose of new paragraph 470.221(b) is to clarify policy intention that if an applicant is aged less than 18 years at the time of decision, exceptional circumstances must exist for the grant of a Subclass 470 (Professional Development) visa.

Item [19] - Subclause 820.211(2A), note

This item substitutes the note beneath subclause 820.211(2A) of Part 820 of Schedule 2 to the Migration Regulations with a new note.

Subclause 820.211(2A) refers to SOFA forces civilian component members and SOFA forces members. These terms are defined in regulation 1.03 of the Migration Regulations. The note broadly summarises these definitions beneath subclause 866.211(2A) for the reader's convenience.

This amendment inserts references to France and Turkey into the note to reflect that references to France and Turkey have been inserted by these regulations into the definitions of these terms in regulation 1.03.

Item [20] - Subclause 832.212(1)

This item amends subclause 832.212(1) of Part 832 of Schedule 2 to the Migration Regulations by omitting the reference to subclause (2), (4) or (5) and inserting a reference to subclause (2), (4), (5) or (6).

New subclause 832.212(1) provides that if an applicant meets the requirements in subclause 832.211(2), the applicant must meet the requirements of subclause (2), (4), (5) or (6).

This amendment is consequential to the insertion by these regulations of new subclause 832.212(6) in Schedule 2 of the Migration Regulations.

Item [21] - Subclause 832.212(5)

This item substitutes subclause 832.212(5) of Part 832 of Schedule 2 to the Migration Regulations with new subclauses 832.212(5) and 832.212(6).

New subclause 832.212(5) provides that an applicant meets the requirements of this subclause if the applicant:

• meets the requirements of paragraph 832.211(2)(b); that is, is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and

• satisfies the criteria to be satisfied at the time of application for a Subclass 151 (Former Resident) visa, set out in Subdivision 151.21 of Schedule 2 to the Migration Regulations; and

• satisfies Schedule 3 criterion 3002.

Schedule 3 criterion 3002 provides that an application must be validly made within 12 months after the relevant day, defined in subclause 3001(2) of Schedule 3 of the Migration Regulations. This may mean that an application is made within 12 months after an applicant's substantive visa expires.

The purpose of subclause 832.212(5) is to clarify that a person who is not the holder of a substantive visa, must satisfy the criteria set out in Subdivision 151.21 and meet Schedule 3 criterion 3002. The original policy intention behind the inclusion of criterion 3002 is to ensure that those applicants who are unlawful, regularise their visa status as soon as possible.

New subclause 832.212(6) provides that an applicant meets the requirements of this subclause if the applicant:

• meets the requirements of paragraph 832.211(2)(a), that is, is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; and

• satisfies the criteria to be satisfied at the time of application for a Subclass 151 (Former Resident) visa, set out in Subdivision 151.21 of Schedule 2 to the Migration Regulations.

The purpose of new subclause 832.212(6) is to clarify policy intention that a person who is the holder of a substantive visa, other than a Subclass 771 (Transit) visa may be eligible for the grant of a Subclass 832 (Close Ties) visa if they satisfy the criteria in Subdivision 151.21. A person who is the holder of a substantive visa, other than a Subclass 771 (Transit) visa is not required to meet Schedule 3 criterion 3002.

Item [22] - Paragraph 832.221(4)(a)

This item amends paragraph 832.221(4)(a) of Part 832 of Schedule 2 to the Migration Regulations by omitting the reference to subclause 832.212(5) and inserting subclause 832.212(5) or (6).

New subclause 832.221(4)(a) provides that an applicant meets the requirements of this subclause if the applicant meets the requirements of subclause 832.212(5) or (6).

This amendment is consequential to the insertion by these regulations of new subclause 832.212(6) in Schedule 2 of the Migration Regulations.

Item [23] - Clause 855.213

This item substitutes clause 855.213 of Part 855 of Schedule 2 to the Migration Regulations with new clause 855.213. New subclause 855.213(1) requires an applicant to meet the requirements in either new subclause 855.213(2) or (3).

The requirements in new subclause 855.213(2) apply to applications made in relation to labour agreements. Under subclause 855.213(2), applicants are required to have been nominated by an employer for a permanent position in an industry for which there is a labour agreement, has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement, and have not turned 45 (unless exceptional circumstances apply). The requirements in new subclause 855.213(2) are the same as the requirements in substituted clause 855.213.

The requirements in new subclause 855.213(3) apply to applications made in relation to IASS agreements. Under subclause 855.213(3), applicants are required to be nominated by an employer for a permanent position in a business in Australia for which there is an IASS agreement and are highly skilled persons, as defined in subregulation 5.19(3) of Part 5 of the Migration Regulations, in relation to the position. The requirements in subregulation 5.19(3) relate to formal training and experience, relevant work experience and, where necessary, required qualifications.

Item [24] - Clauses 855.221 and 855.222

This item makes technical amendments which are consequential to the substitution of new clause 855.213 by these regulations by substituting clauses 855.221 and 855.222 of Part 855 of Schedule 2 to the Migration Regulations with new clauses 855.221 and 855.222.

New clause 855.221 clarifies that the Minister must approve the nomination mentioned in paragraph 855.213(2)(a) or (3)(a) for a permanent position in an industry for which there is a labour agreement or in a business for which there is an IASS agreement.

New clause 855.222 requires the Minister to be satisfied that the position mentioned in paragraph 855.213(2)(a) or (3)(a) will provide the employment referred to in the relevant nomination.

Item [25] - Subclause 858.212(1)

This item amends subclause 858.212(1) of Part 858 of Schedule 2 to the Migration Regulations by omitting the reference to subclause (2), (3) or (4) and replacing it with a reference to subclause (2) or (4).

This amendment is consequential to the deletion of subclause 858.212(3) by these Regulations.

Item [26] - Subclauses 858.212(2) and (3)

This item substitutes subclauses 858.212(2) and (3) of Part 858 of Schedule 2 to the Migration Regulations with new subclause 858.212(2). The content of subclause 858.212(3) has been incorporated into new subclause 858.212(2).

New subclause 858.212(2) provides that the applicant meets the requirements of this subclause if the applicant:

• has an internationally recognised record of exceptional and outstanding achievement in one of the following areas - a profession, a sport, the arts or academia and research; and

• is currently prominent in the nominated area; and

• would be an asset to the Australian community; and

• would have no difficulty in obtaining employment or in becoming established in Australia in the area; and

• produces a nomination testifying to the applicant's achievement and standing in the area form an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to the nominated area; and

• if the applicant is less than 18 years or 55 years and over at the time of application, is able to demonstrate that he or she would be an exceptional benefit to the Australian community.

The purpose of new paragraph 858.212(2)(a) (the first dot point above) is to clarify policy intention that an internationally recognised record of exceptional and outstanding achievement may only be claimed in one of the four areas specified, (a profession, the arts, a sport, and academia and research).

The purpose of new paragraph 858.212(2)(f) (the last dot point above) is to provide additional criteria that must be met by applicants who are aged less than 18 years or 55 years and over. Such applicants must demonstrate that they would provide the Australian community with exceptional benefit.

Item [27] - After clause 858.224

This item inserts clause 858.225 in Part 858 of Schedule 2 of the Migration Regulations. New clause 858.225 provides that if an applicant is aged less than 18 years, public interest criteria 4017 and 4018 must be satisfied in relation to the applicant.

Public interest criteria 4017 provides that the Minister must be satisfied that:

• the law of the applicant's home country permits the removal of the applicant; or

• each person who can lawfully determine where the applicant is to live consents to the grant of the visa; or

• the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

Public interest criteria 4018 provides that the Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

The purpose of new clause 858.225 is to ensure that where an applicant for a Subclass 858 (Distinguished Talent) is aged less than 18 years of age, the grant of the visa is:

• in accordance with any foreign or Australian laws in relation to where the applicant lives; and

• agreeable to those people who can lawfully determine where the applicant is to live; and

• in the best interests of the applicant.

Item [28] - Division 858.3, note after the heading

This item substitutes the note after the heading to Division 858.3 in Part 858 of Schedule 2 to the Migration Regulations.

New note 1 provides that the criteria in Division 858.3 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. Thus the purpose of new note 1 is to clarify that applicants who are members of the family unit of a person who satisfies the primary criteria must satisfy the secondary criteria in Division 858.3.

New note 2 provides that in relation to an applicant for a Distinguished Talent (Residence) (Class BX) visa who is less than 18 years of age, subregulation 1.12(7) sets out a specific definition of member of the family unit in addition to the definition of member of the family unit provided in subregulation 1.12(1) of Part 1 of the Migration Regulations. In relation to an applicant aged 18 years of age or over, new note 2 refers to the definition of member of the family unit in subregulation 1.12(1).

Schedule 4 - Amendment of Schedule 4

Item [1] - Part 2, item 4051, column 3

This item inserts condition 8104 in column 3 of item 4051 of Part 2 of Schedule 4 to the Migration Regulations. Part 2 of Schedule 4 provides what conditions are applicable to certain subclasses of visas for the purposes of subclause 4013(2) of Part 1 of Schedule 4.

Subclause 4013(2) provides that certain persons are barred for three years from making visa applications if, for example, the visa previously held by the person was cancelled under section 116 or 128 of the Act, because the person did not comply with a condition specified in Part 2 of Schedule 4 in relation to the subclass of visa held.

Item 4051 of Part 2 of Schedule 4 provides which conditions will trigger the three year bar in relation to a Subclass 410 (Retirement) visa. The purpose of this amendment is to include a reference to condition 8104 in item 4051. Condition 8104 provides that the visa holder must not engage in work for more than 20 hours a week whilst in Australia.

Clause 410.611 of Schedule 2 to the Migration Regulations provides that condition 8104 is to be attached to a Subclass 410 (Retirement) visa. The amendment to column 3 of item 4051 of Part 2 is consequential to clause 410.611, and ensures that if the holder of a Subclass 410 (Retirement) visa breaches condition 8104, subclause 4013 (2) will be triggered.

Schedule 5 - Amendments of Schedule 9

Item [1] - Schedule 9, heading

This item substitutes the heading to Schedule 9 to the Migration Regulations with the new heading "Special entry and clearance arrangements" and refers to regulations 3.01, 3.03, and 3.06. It omits an incorrect reference to regulation 3.02 of Part 3 of the Migration Regulations and replaces the new heading to Schedule 9 with the correct reference, regulation 3.01.

Item [2] - Part 1, item 14

This item substitutes the evidence of identity that must be provided by an airline crew member who has been taken to be granted a Special Purpose Visa in item 14 of Schedule 9 of Part 1 of the Migration Regulations.

New item 14 provides that airline crew members must show, as evidence of identity, a passport, and either:

• a valid airline identity card; or

• if the person is an aircraft safety inspector:

- a valid government identity document showing that he or she is employed by a foreign government; or

- an ICAO Safety Inspector Certificate.

The purpose of this amendment is to specify the evidence of identity that an airline crew member who has been taken to be granted a Special Purpose Visa must show a clearance officer in accordance with paragraph 3.03(3)(a) of Part 1 of the Migration Regulations.

Item [3] - Part 1, item 16, column 3

This item amends item 16 of Part 1 of Schedule 9 to the Migration Regulations to set out the documents that members of crew of non-military ships are required to show as evidence of identity upon entering Australia. The members of crew of non-military ships must show an identity document and a passport as evidence of identity rather than just either an identity document or a passport.

There has been a growing international concern about the adequacy of seafarer's identity documents. Requiring seafarers to present a passport at immigration clearance will greatly enhance accuracy of identification and improve security arrangements at Australian seaports.

Section 5 of the Act defines "identity document" in paragraph (b) as, in relation to a member of the crew of a vessel, a document, of a kind approved by the Minister as an identity document for the purposes of the Act, in respect of the member. The Minister has approved particular kinds of documents as identity documents for this purpose.

Schedule 6 - Additional amendments of Schedule 2

Item [1] - Paragraph 101.211(1)(a)

This item substitutes paragraph 101.211(1)(a) of Part 101 of Schedule 2 to the Migration Regulations with new paragraph 101.211(1)(a). New paragraph 101.211(1)(a) substitutes the reference to "an Australian permanent resident" with a reference to "the holder of a permanent visa" and changes the structure of the paragraph.

The phrase "Australian permanent resident" is defined in regulation 1.03 to mean a non-citizen who is usually resident in Australia and is the holder of a permanent visa. Applications for Subclass 101 (Child) visas are required to be made outside Australia and applicants are required, among other things, to be a dependent child of the sponsor. Where a sponsor seeks to meet the Australian permanent resident requirement and wishes to sponsor his or her dependent child, the sponsor must be separated from the child in order to meet the requirement that the sponsor is 'usually resident' in Australia.

The amendment made by this item ensures that applicants and sponsors who hold permanent visas do not need to separate by effectively removing the requirement that sponsors are usually resident in Australia.

Item [2] - Subparagraph 101.211(1)(c)(i)

This item amends subparagraph 101.211(1)(c)(i) of Part 101 of Schedule 2 to the Migration Regulations. This amendment substitutes the reference to "Australian permanent resident" in subparagraph 101.211(1)(c)(i) with a reference to "holder of a permanent visa".

Australian permanent resident is defined in regulation 1.03 to mean a non-citizen who is usually resident in Australia and is the holder of a permanent visa. Applications for Subclass 101 (Child) visas are required to be made outside Australia and applicants are required, among other things, to be a dependent child of the sponsor. Where a sponsor seeks to meet the Australian permanent resident requirement and wishes to sponsor his or her dependent child, the sponsor must separate from the child in order to meet the requirement that the sponsor is 'usually resident' in Australia.

Item [3] - Subparagraph 101.211(1)(c)(ii)

Item [4] - Paragraph 101.212(b)

These items amend subparagraph 101.211(1)(c)(ii) and paragraph 101.212(b) of Part 101 of Schedule 2 to the Migration Regulations. These amendments substitute the references to "an Australian permanent resident" in subparagraph 101.211(1)(c)(i) and paragraph 101.212(b) with references to "a holder of a permanent visa".

Item [5] - Subparagraph 101.212(c)(i)

Item [6] - Subparagraph 101.212(c)(ii)

These items amend subparagraphs 101.212(c)(i) and 101.212(c)(ii) of Part 101 of Schedule 2 to the Migration Regulations. These amendments substitute the references to "Australian permanent resident" in subparagraphs 101.212(c)(i) and 101.212(c)(ii) with references to "holder of a permanent visa".

Australian permanent resident is defined in regulation 1.03 to mean a non-citizen who is usually resident in Australia and is the holder of a permanent visa. Applications for Subclass 101 (Child) visas are required to be made outside Australia and applicants are required, among other things, to be a dependent child of the sponsor. Where a sponsor seeks to meet the Australian permanent resident requirement and wishes to sponsor his or her dependent child, the sponsor must separated from the child in order to meet the requirement that the sponsor is 'usually resident' in Australia.

Item [7] - Clause 102.111, definition of prospective adoptive parent, paragraph (c)

This item amends clause 102.111 of Part 101 of Schedule 2 to the Migration Regulations. This amendment substitutes the reference to "Australian permanent resident" in paragraph (c) of the definition of prospective adoptive parent in clause 102.111 of Schedule 2 to the Migration Regulations with a reference to "holder of a permanent visa".

The purpose of this amendment is to use consistent references and requirements for persons who are holders of permanent visas and who sponsor applicants for Subclass 102 (Adoption), Subclass 101 (Child) and Subclass 802 (Child) visas. This amendment is consequential to the amendments to Subclass 101 (Child) by these regulations.

Item [8] - Subparagraph 102.211(2)(b)(i)

Item [9] - Subparagraph 102.211(3)(c)(i)

Item [10] - Subparagraph 102.211(3)(c)(ii)

Item [11] - Paragraph 102.211(4)(c)

Item [12] - Paragraph 102.211(5)(b)

Item [13] - Paragraph 102.212(a)

These items amend subparagraphs 102.211(2)(b)(i), 102.211(3)(c)(i) and 102.211(3)(c)(ii), and paragraphs 102.211(4)(c), 102.211(5)(b) and 102.212(a) of Part 102 of Schedule 2 to the Migration Regulations. These amendments substitute the references to "an Australian permanent resident" in subparagraphs 102.211(2)(b)(i), 102.211(3)(c)(i) and 102.211(3)(c)(ii), and paragraphs 102.211(4)(c), 102.211(5)(b) and 102.212(a) with references to "a holder of a permanent visa".

Item [14] - Paragraph 802.211(d)

This item substitutes paragraph 802.211(d) of Part 802 of Schedule 2 to the Migration Regulations with new paragraph 802.211(d). New paragraph 802.211(d) substitutes the reference to "an Australian permanent resident" with a reference to "the holder of a permanent visa" and changes the structure of the paragraph.

Item [15] - Paragraph 802.212(1)(a)

Item [16] - Subclause 802.213(1)

Item [17] - Subclause 802.213(3)

Item [18] - Paragraph 802.213(4)(a)

Item [19] - Paragraph 802.213(5)(a)

These items amend paragraphs 802.212(1)(a), 802.213(4)(a) and 802.213(5)(a), and subclauses 802.213(1) and 802.213(3) of Part 802 of Schedule 2 to the Migration Regulations. These amendments substitute the references to "Australian permanent resident" in paragraphs 802.212(1)(a), 802.213(4)(a) and 802.213(5)(a), and subclauses 802.213(1) and 802.213(3) with references to "holder of a permanent visa".

Item [20] - Paragraph 802.215(b)

This item amends paragraph 802.215(b) of Part 802 of Schedule 2 to the Migration Regulations. This amendment substitutes the reference to "an Australian permanent resident" in paragraph 802.215(b) with a reference to "the holder of a permanent visa".

Item [21] - Subparagraph 802.215(c)(i)

Item [22] - Subparagraph 802.215(c)(ii)

These items amend subparagraphs 802.215(c)(i) and 802.215(c)(ii) of Part 802 of Schedule 2 to the Migration Regulations. These amendments substitute the references to "Australian permanent resident" in subparagraphs 802.215(c)(i) and 802.215(c)(ii) with references to "holder of a permanent visa".

Item [23] - Paragraph 802.311(a)

This item makes a technical amendment by removing the reference to "Special Eligibility (Residence) (Class AO) visa", and replacing it with a reference to "Child (Residence) (Class BT) visa". The reference to a Special Eligibility (Residence) (Class AO) visa was a consequential amendment that became irrelevant for clause 802.311 by reason of the disallowance of a Statutory Rule in 1999.