MIGRATION AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 93

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 93

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 93

Issued by the Minister for Immigration and Multicultural
and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2004 (No. 2)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the

Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Regulations is to amend the Principal Regulations to make amendments to: application and grant requirements for certain student visas, special program visas and resident return visas; the status of certain newborn children; the status of crew members of ships; assurance of support provisions; public interest criteria; overseas business sponsorship approvals and nomination requirements; and make various technical amendments.

The Regulations reflect regular changes that are made to the Migration Regulations 1994 (the Principal Regulations) every 1 July and 1 November. These are routine amendments that give effect to the ongoing update of immigration policy and regulations.

In particular, the Regulations effect changes to the Principal Regulations to:

• enable children born to contributory parent visa holders to gain the same visa status as their parent in order to avoid separation of a parent and newborn child;

• require the crew of non-military ships and the crew of ships being imported to Australia to have identity documents with them on entry to Australia in order to be granted special purpose visas;

• reflect changes to the assurance of support scheme which gives the Secretary of the Department of Family and Community Services the responsibility for assessing and accepting assurances, and to standardise the wording of mandatory and discretionary assurance of support provisions;

• ensure that a 3 year period must pass before a non-citizen who has had a visa cancelled on the grounds of fraudulent conduct can be granted certain other visas (unless the Minister finds there are compelling or compassionate circumstances);

• clarify that an overseas business sponsor cannot apply for approval as a standard business sponsor or make a nomination using approved form 1196 (Internet);

• make various amendments to the student visa provisions to:

- preclude a person from holding a postgraduate research sector visa for a continuous period of more than six months on the basis that the person is required to remain in Australia during the marking of his or her thesis (unless exceptional circumstances exist);

- ensure that non-citizens who have ever held an AusAID student visa must remain outside Australia for 2 years before being eligible for certain other visas (unless the Minister responsible for AusAID supports an earlier grant of the visa);

- facilitate the transfer of Certificate I to IV English Language Intensive Course for Overseas Students (ELICOS) from the Vocational Educational and Training Sector to the Independent ELICOS Sector;

- enable a family member of a student visa holder who is outside Australia to apply for a student visa using the Internet; and

- simplify the requirement for certain student visa applicants to give evidence of previous schooling, training or other study;

• enable organisations that are parties to Invest Australia Supported Skills agreements to nominate the business activities in which they propose to employ persons on a business (long stay) visa;

• allow certain passport holders who are located outside Australia at the time of grant of their entertainment visa to travel to, and enter Australia without a visa label;

• make various amendments relating to special program visas to:

- require applicants to make their application in Australia;

- allow certain passport holders who are located outside Australia at the time of grant to travel to, and enter Australia without a visa label;

- require those passport holders to obtain a visa label from Immigration once in Australia;

• limit the circumstances in which an application for a resident return visa (RRV) is a valid application, in order to prevent certain business visa holders circumventing cancellation of their visas by applying for and being granted an RRV, and to allow RRVs to be cancelled in certain circumstances; and

• make various technical amendments.

Details of the Regulations are set out in Attachment B.

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

Regulations 1 to 4 and Schedule 6 to the Regulations are taken to have commenced on 1 November 2003. The remainder of the Regulations commence on 1 July 2004.

Amendments made by Schedule 6 to the Regulations have retrospective effect as they are taken to have commenced on 1 November 2003. Schedule 6 amends the Principal Regulations to enable certain overseas organisations to nominate business activities in which they propose to employ persons on a business (long stay) visa. Nomination of business activities was inserted as a requirement for the grant of a business visa on 1 November 2003. By omission, the regulations do not enable such a nomination to be made. This amendment is taken to have effect from 1 November 2003 to ensure that any nominations correctly made after that date are valid.

Amendments made by Part 2 of Schedule 2 to the Regulations have retrospective effect in certain circumstances. Part 2 of Schedule 2 amends the Principal Regulations to provide that, where an assurance of support is required, it must be provided at the time the visa application is being decided, rather than when the application was made. This applies to undecided visa applications made before 1 July 2004 as well as after 1 July 2004, to ensure those applicants are not refused the visa on the basis that there was no assurance of support at the time of visa application.

The amendments made by Part 2 of Schedule 2 and Schedule 6 are not contrary to subsection 48(2) of the Acts Interpretation Act 1901 as the changes are beneficial in nature, and do not affect the rights of any person so as to disadvantage that person. Nor do they impose liabilities on any person in respect of anything done, or omitted to be done, before the date of notification.

0404188A-040419Z

ATTACHMENT B

Details of the Migration Amendment Regulations 2004 (No. 2)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 2).

Regulation 2 - Commencement

This regulation provides that these Regulations commence, or are taken to have commenced, as follows:

• on 1 November 2003 - regulations 1 to 4 and Schedule 6;

• on 1 July 2004.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedules 1 to 12 amend the Migration Regulations 1994 (the Principal Regulations).

Regulation 4 - Transitional - amendments made by Schedule 6

This regulation provides that the amendments made by Schedule 6 apply in relation to a nomination made on or after 1 November 2003.

Regulation 5 - Transitional - amendments made by other Schedules

Subregulation 5(1) provides that the amendments made by Schedule 1 apply to persons who enter Australia on or after 1 July 2004.

Subregulation 5(2) provides that the amendments made by Part 1 of Schedule 2 apply in relation to an application for a visa made on or after 1 July 2004.

Subregulation 5(3) provides that the amendments made by Part 2 of Schedule 2 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 July 2004; or

• made on or after 1 July 2004.

Subregulation 5(4) provides that the amendment made by Schedule 3 applies in relation to an application for a visa in the following circumstances:

• the application is made on or after 1 July 2004; and

• at the time of application, the applicant holds or has held a visa that is cancelled on or after 1 July 2004 under sections 116 or 128 of the Act on the ground mentioned in paragraph 2.43(1)(o) of the Principal Regulations.

Subregulation 5(5) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made on or after 1 July 2004.

Subregulation 5(6) provides that the amendment made by item [1] of Schedule 5 applies in relation to an application for approval as a standard business sponsor made on or after 1 July 2004.

Subregulation 5(7) provides that the amendment made by item [2] of Schedule 5 applies in relation to a nomination made on or after 1 July 2004.

Subregulation 5(8) provides that the amendments made by items [1] and [3] of Schedule 8 apply to a person who enters Australia on or after 1 July 2004.

Subregulation 5(9) provides that the amendment made by item [2] of Schedule 8 applies in relation to an application for a visa:

• made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2004; or

• made on or after 1 July 2004.

Subregulation 5(10) provides that the amendments made by Schedule 9 apply in relation to an application for:

• a Contributory Parent (Temporary) (Class UT) visa; or

• a Contributory Aged Parent (Temporary) (Class UU) visa; or

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

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

made on or after 1 July 2004.

Subregulation 5(11) provides that the amendments made by Schedule 10 apply in relation to an application for a visa made on or after 1 July 2004.

Subregulation 5(12) provides that the amendments made by Schedule 12 apply in relation to an application for a visa made on or after 1 July 2004.

Schedule 1 - Amendments relating to special purpose visas

Item [1] - Subregulation 2.40(6), including the heading

This item substitutes subregulation 2.40(6) of Part 2 of the Principal Regulations with new subregulation 2.40(6).

New subregulation 2.40(6) provides that a person who is a member of the crew of a non-military ship (other than ships being imported into Australia) has a prescribed status if, and only if:

• the ship of whose crew he or she is a member:

- enters Australia at a proclaimed port or if permission for it to do so has been given in advance by the Australian Customs Service under section 58 of the Customs Act 1901 - a port other than a proclaimed port; and

- will leave Australia to a place outside Australia during the course of the voyage; and

• the person has been issued with a passport that is in force and a document that identifies the person as a seafarer employed on that ship; and

• the passport and the document are located on the ship at the time the ship enters Australia.

Member of the crew, in relation to a non-military ship, is defined in regulation 1.03 as:

• a person who is articled crew; or

• a person who is not articled crew but is employed on the ship under contract and is included in the crew list or the supernumerary crew list of the ship; or

• if the ship is a ship of the kind described in paragraph (b) of the definition of non-military ship - a person who is employed in scientific research conducted on or from the ship.

The purpose of this amendment is to ensure that a person who is a member of the crew of a non-military ship (other than ships being imported into Australia) must hold a passport and a document that identifies the person as a seafarer employed on the ship to achieve the prescribed status and be taken to be granted a Special Purpose Visa in accordance with section 33 of the Act.

Item [2] - Subregulation 2.40(8), including the heading

This item substitutes subregulation 2.40(8) of Part 2 of the Principal Regulations with new subregulation 2.40(8).

New subregulation 2.40(8) provides that a person who is a member of the crew of a ship being imported into Australia has a prescribed status if, and only if;

• the ship of whose crew he or she is a member:

- will leave Australia to a place outside Australia during the course of the voyage; and

• the person has been issued with a passport that is in force and a document that identifies the person as a seafarer employed on that ship; and

• the passport and document are located on the ship at the time the ship enters Australia.

Member of the crew, in relation to a non-military ship, is defined in regulation 1.03 as:

• a person who is articled crew; or

• a person who is not articled crew but is employed on the ship under contract and is included in the crew list or the supernumerary crew list of the ship; or

• if the ship is a ship of the kind described in paragraph (b) of the definition of non-military ship - a person who is employed in scientific research conducted on or from the ship.

The purpose of this amendment is to ensure that a person who is a member of the crew of a ship being imported to Australia must hold a passport and a document that identifies the person as a seafarer employed on that ship to achieve the prescribed status and be taken to be granted a Special Purpose Visa in accordance with section 33 of the Act.

Item [3] - Schedule 9, Part 1, item 16, column 3

This item substitutes in column 3 of item 16 of Part 1 of Schedule 9 to the Principal Regulations, the phrase "passport and identity document" with "passport that is in force, and a document that identifies the person as a seafarer employed on that ship".

The purpose of this amendment is to ensure that the same document that is relevant to a member of crew achieving a prescribed status in subregulations 2.40(6) and 2.40(8) is the document required for immigration clearance for the purposes of section 166 of the Act.

Paragraph 3.03(3)(a)(i) of Part 3 of the Principal Regulations provides that for subsection 166(2) of the Act, which specifies the requirements for immigration clearance, a non-citizen who is required to comply with section 166 of the Act must, if the non-citizen is taken to hold a special purpose visa, show a clearance officer evidence of the person's identity, as specified in Part 1 of Schedule 9.

Schedule 2 - Amendments relating to assurance of support requirements

Part 1 - Amendments of Division 2.7 and Schedule 1

Item [1] - Subdivision 2.7.2, heading

This item substitutes the heading of Subdivision 2.7.2 of Part 2 of the Principal Regulations with the new heading "Assurances of support given in relation to applications lodged after 19 December 1991 and accepted by the Minister before 1 July 2004".

This amendment is consequential to amendments made to the Social Security Act 1991 by Schedule 3 to the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003. These amendments to the Social Security Act 1991 provide for the Secretary of the Department of Family and Community Services to make decisions from 1 July 2004 about whether to accept or refuse an assurance of support necessary for the grant of a subclass of visa in Schedule 2 to the Principal Regulations.

Prior to 1 July 2004, the Minister was required to decide whether to accept or reject an assurance of support. From 1 July 2004, Subdivision 2.7.2 only relates to assurances of support lodged after 19 December 1991 and accepted by the Minister before 1 July 2004.

Item [2] - Regulation 2.35, definition of assurance of support

This item amends the definition of assurance of support in regulation 2.35 of Part 2 of the Principal Regulations by omitting the word "1991" and replacing it with the phrase "1991 and accepted by the Minister before 1 July 2004".

Item [3] - Schedule 1, paragraphs 1128BA(3)(n) and (o)

This item omits paragraphs 1128BA(3)(n) and (o) of Schedule 1 to the Principal Regulations. Item 1128BA provides the requirements that must be met for an application for a Skilled -- Australian-sponsored Overseas Student (Residence) (Class DE) visa to be valid.

The purpose of this amendment is to remove the requirement that a valid application for a Class DE visa must be accompanied by a completed assurance of support in relation to the applicant, and evidence relating to the assurer's eligibility, income tax assessments and employment status.

Subitem 1128BA(4) provides that Class DE has two subclasses of visa, Subclasses 881 (Skilled -- Australian-sponsored Overseas Student) and 882 (Skilled -- Designated Area-sponsored Overseas Student). Amendments by these Regulations to Parts 881 and 882 of Schedule 2 to the Principal Regulations insert new assurance of support provisions in both primary and secondary criteria to be satisfied at the time of decision, and remove time of application requirements relating to assurances of support. The amendments made by these Regulations remove, as a time of application criterion, requirements relating to assurances of support.

Part 2 - Amendments of Schedule 2

Item [4] - Amendments relating to mandatory assurance provisions - primary criteria

This item amends various clauses in Schedule 2 to the Principal Regulations to make it a time of decision criterion for applicants seeking to satisfy the primary criteria for the grant of a visa that the Minister is satisfied that an assurance of support has been accepted by the Secretary of the Department of Family and Community Services.

The clauses amended by this item are:

• clause 103.226 of Part 103 (Subclass 103 (Parent));

• clause 114.225 of Part 114 (Subclass 114 (Aged Dependent Relative));

• clause 115.225 of Part 115 (Subclass 115 (Remaining Relative));

• clause 116.225 of Part 116 (Subclass 116 (Carer));

• clause 118.226 of Part 118 (Subclass 118 (Designated Parent));

• clause 138.222 of Part 138 (Subclass 138 (Skilled - Australian-sponsored));

• clause 139.223 of Part 139 (Subclass 139 (Skilled - Designated Area-sponsored));

• clause 143.228 of Part 143 (Subclass 143 (Contributory Parent));

• clause 804.224 of Part 804 (Subclass 804 (Aged Parent));

• clause 835.222 of Part 835 (Subclass 835 (Remaining Relative));

• clause 836.222 of Part 836 (Subclass 836 (Carer));

• clause 838.222 of Part 838 (Subclass 838 (Aged Dependent Relative));

• clause 859.224 of Part 859 (Subclass 859 (Designated Parent));

• clause 862.222 of Part 862 (Subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen));

• clause 863.223 of Part 863 (Subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen));

• clause 864.226 of Part 864 (Subclass 864 (Contributory Aged Parent));

• clause 881.222 of Part 881 (Subclass 881 (Skilled - Australian-sponsored Overseas Student)); and

• clause 882.223 of Part 882 (Subclass 882 (Skilled - Designated Area-sponsored Overseas Student)).

The amendments made by this item also standardise the wording of mandatory assurance of support criteria in Schedule 2 to the Principal Regulations.

Item [5] - Amendments relating to mandatory assurance provisions - secondary criteria

This item amends various clauses in Schedule 2 to the Principal Regulations to make it a time of decision criterion for an applicant seeking to satisfy the secondary criteria for the grant of a visa that the Minister is satisfied that:

• the applicant is included in the assurance of support given in relation to the person who satisfies the primary criteria, which has been accepted by the Secretary of the Department of Family and Community Services; or

• an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

The clauses amended by this item are:

• clause 103.325 of Part 103 (Subclass 103 (Parent));

• clause 114.325 of Part 114 (Subclass 114 (Aged Dependent Relative));

• clause 115.325 of Part 115 (Subclass 115 (Remaining Relative));

• clause 116.325 of Part 116 (Subclass 116 (Carer));

• clause 118.325 of Part 118 (Subclass 118 (Designated Parent));

• clause 138.323 of Part 138 (Subclass 138 (Skilled - Australian-sponsored));

• clause 139.323 of Part 139 (Subclass 139 (Skilled - Designated Area-sponsored));

• clause 143.327 of Part 143 (Subclass 143 (Contributory Parent));

• clause 804.323 of Part 804 (Subclass 804 (Aged Parent));

• clause 835.323 of Part 835 (Subclass 835 (Remaining Relative));

• clause 836.323 of Part 836 (Subclass 836 (Carer));

• clause 838.323 of Part 838 (Subclass 838 (Aged Dependent Relative));

• clause 859.323 of Part 859 (Subclass 859 (Designated Parent));

• clause 862.323 of Part 862 (Subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen));

• clause 863.323 of Part 863 (Subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen));

• clause 864.327 of Part 864 (Subclass 864 (Contributory Aged Parent));

• clause 881.323 of Part 881.222 (Subclass 881 (Skilled - Australian-sponsored Overseas Student)); and

• clause 882.323 of Part 882 (Subclass 882 (Skilled - Designated Area-sponsored Overseas Student)).

The amendments made by this item also standardise the wording of mandatory assurance of support criteria in Schedule 2 to the Principal Regulations.

Item [6] - Amendments relating to discretionary assurance provisions - primary criteria

This item amends various clauses in Schedule 2 to the Principal Regulations to make it a time of decision criterion for an applicant seeking to satisfy the primary criteria for the grant of a visa that if the Minister has requested an assurance of support in relation to the applicant, the Minister is satisfied that an assurance of support has been accepted by the Secretary of the Department of Family and Community Services.

The clauses amended by this item are:

• clause 100.223 of Part 100 (Subclass 100 (Spouse));

• clause 101.225 of Part 101 (Subclass 101 (Child));

• clause 102.225 of Part 102 (Subclass 102 (Adoption));

• clause 105.227 of Part 105 (Subclass 105 (Skilled - Australian-linked));

• clause 106.226 of Part 106 (Subclass 106 (Regional-linked));

• clause 110.223 of Part 110 (Subclass 110 (Interdependency));

• clause 117.224 of Part 117 (Subclass 117 (Orphan Relative));

• clause 119.224 of Part 119 (Subclass 119 (Regional Sponsored Migration Scheme));

• clause 120.223 of Part 120 (Subclass 120 (Labour Agreement));

• clause 121.225 of Part 121 (Subclass 121 (Employer Nomination));

• clause 124.223 of Part 124 (Subclass 124 (Distinguished Talent));

• clause 126.225 of Part 126 (Subclass 126 (Independent));

• clause 134.225 of Part 134 (Subclass 134 (Skill Matching));

• clause 135.226 of Part 135 (Subclass 135 (State/Territory-nominated Independent));

• clause 136.228 of Part 136 (Subclass 136 (Skilled - Independent));

• clause 137.227 of Part 137 (Subclass 137 (Skilled - State/Territory-nominated Independent));

• clause 151.223 of Part 151 (Subclass 151 (Former Resident));

• clause 300.225 of Part 300 (Subclass 300 (Prospective Marriage));

• clause 309.227 of Part 309 (Subclass 309 (Spouse (Provisional)));

• clause 310.226 of Part 310 (Subclass 310 (Interdependency (Provisional)));

• clause 801.222 of Part 801 (Subclass 801 (Spouse));

• clause 802.222 of Part 802 (Subclass 802 (Child));

• clause 814.222 of Part 814 (Subclass 814 (Interdependency));

• clause 820.222 of Part 820 (Subclass 820 (Spouse));

• clause 826.222 of Part 826 (Subclass 826 (Interdependency));

• clause 831.222 of Part 831 (Subclass 831 (Prospective Marriage Spouse));

• clause 832.224 of Part 832 (Subclass 832 (Close Ties));

• clause 837.222 of Part 837 (Subclass 837 (Orphan Relative));

• clause 855.224 of Part 855 (Subclass 855 (Labour Agreement));

• clause 856.224 of Part 856 (Subclass 856 (Employer Nomination Scheme));

• clause 857.224 of Part 857 (Subclass 857 (Regional Sponsored Migration Scheme));

• clause 858.222 of Part 858 (Subclass 858 (Distinguished Talent));

• clause 861.228 of Part 861 (Subclass 861 (Skilled - Onshore Independent New Zealand Citizen)); and

• clause 880.226 of Part 880 (Subclass 880 (Skilled - Independent Overseas Student)).

The amendments made by this item also standardise the wording of discretionary assurance of support criteria in Schedule 2 to the Principal Regulations.

In addition, the purpose of the amendments to clauses 117.224 and 837.222 is to change the requirement for an assurance of support from being mandatory to an assurance only needing to be provided if requested by the Minister. Subclasses 117 and 837 provide for orphan relatives of an Australian relative (as defined in clauses 117.111 and 837.111 of Schedule 2 to the Principal Regulations) to obtain permanent visas to travel to and enter Australia. Making the provision of an assurance of support mandatory is an unnecessary imposition where it is unlikely that a Subclass 117 or 837 visa holder would receive social security benefits.

Item [7] - Amendments relating to discretionary assurance provisions - secondary criteria

This item amends various clauses in Schedule 2 to the Principal Regulations to make it a time of decision criterion for an applicant seeking to satisfy the secondary criteria of the subclasses of visas mentioned below that if the Minister has requested an assurance of support in relation to the person who satisfies the primary criteria, the Minister is satisfied that:

• the applicant is included in the assurance of support given in relation to the person who satisfies the primary criteria and that assurance has been accepted by the Secretary of the Department of Family and Community Services; or

• an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.

The clauses amended by this item are:

• clause 100.323 of Part 100 (Subclass 100 (Spouse));

• clause 101.325 of Part 101 (Subclass 101 (Child));

• clause 102.325 of Part 102 (Subclass 102 (Adoption));

• clause 105.325 of Part 105 (Subclass 105 (Skilled - Australian-linked));

• clause 106.325 of Part 106 (Subclass 106 (Regional-linked));

• clause 110.323 of Part 110 (Subclass 110 (Interdependency));

• clause 117.324 of Part 117 (Subclass 117 (Orphan Relative));

• clause 119.324 of Part 119 (Subclass 119 (Regional Sponsored Migration Scheme));

• clause 120.324 of Part 120 (Subclass 120 (Labour Agreement));

• clause 121.324 of Part 121 (Subclass 121 (Employer Nomination));

• clause 124.324 of Part 124 (Subclass 124 (Distinguished Talent));

• clause 126.324 of Part 126 (Subclass 126 (Independent));

• clause 134.324 of Part 134 (Subclass 134 (Skill Matching));

• clause 135.324 of Part 135 (Subclass 135 (State/Territory-nominated Independent));

• clause 136.324 of Part 136 (Subclass 136 (Skilled - Independent));

• clause 137.324 of Part 137 (Subclass 137 (Skilled - State/Territory-nominated Independent));

• clause 151.324 of Part 151 (Subclass 151 (Former Resident));

• clause 300.325 of Part 300 (Subclass 300 (Prospective Marriage));

• clause 309.325 of Part 309 (Subclass 309 (Spouse (Provisional)));

• clause 310.325 of Part 310 (Subclass 310 (Interdependency (Provisional)));

• clause 801.322 of Part 801 (Subclass 801 (Spouse));

• clause 802.323 of Part 802 (Subclass 802 (Child));

• clause 814.322 of Part 814 (Subclass 814 (Interdependency));

• clause 820.322 of Part 820 (Subclass 820 (Spouse));

• clause 826.323 of Part 826 (Subclass 826 (Interdependency));

• clause 831.322 of Part 831 (Subclass 831 (Prospective Marriage Spouse));

• clause 832.323 of Part 832 (Subclass 832 (Close Ties));

• clause 837.323 of Part 837 (Subclass 837 (Orphan Relative));

• clause 855.323 of Part 855 (Subclass 855 (Labour Agreement));

• clause 856.323 of Part 856 (Subclass 856 (Employer Nomination Scheme));

• clause 857.323 of Part 857 (Subclass 857 (Regional Sponsored Migration Scheme));

• clause 858.323 of Part 858 (Subclass 858 (Distinguished Talent));

• clause 861.324 of Part 861 (Subclass 861 (Skilled - Onshore Independent New Zealand Citizen)); and

• clause 880.323 of Part 880 (Subclass 880 (Skilled - Independent Overseas Student)).

The amendments made by this item also standardise the wording of discretionary assurance of support criteria in Schedule 2 to the Principal Regulations, and ensure that an assurance of support relating to an applicant seeking to satisfy the secondary criteria is only required where the Minister has requested an assurance of support for the person who satisfies the primary criteria.

In addition, the purpose of the amendments to clauses 117.324 and 837.323 is to change the requirement for an assurance of support from being mandatory to an assurance only needing to be provided if requested by the Minister. Subclasses 117 and 837 provide for orphan relatives of Australian relative (as defined in clauses 117.111 and 837.111 of Schedule 2 to the Principal Regulations) to obtain permanent visas to travel to and enter Australia. Making the provision of an assurance of support mandatory is an unnecessary imposition where it is unlikely that a Subclass 117 or 837 visa holder would receive social security benefits.

Item [8] - Subdivision 881.21, including the note

Item [9] - Subdivision 882.21, including the note

These items substitute Subdivisions 881.21 and 882.21 of Schedule 2 to the Principal Regulations with new Subdivisions 881.21 and 882.21 respectively.

New Subdivisions 881.21 and 882.21 provide that there are no criteria to be satisfied at time of application. These amendments are consequential to the removal of paragraphs 1128BA(3)(n) and (o) of Schedule 1 to the Principal Regulations. Amendments to Parts 881 and 882 of Schedule 2 insert new assurance of support provisions in both primary and secondary criteria to be satisfied at the time of decision.

Item [10] - Further amendments - omissions

This item omits the following clauses in Schedule 2 to the Principal Regulations:

• clause 138.213 of Part 138 (Subclass 138 (Skilled - Australian-sponsored));

• clause 138.313 of Part 138 (Subclass 138 (Skilled - Australian-sponsored));

• clause 139.214 of Part 139 (Subclass 139 (Skilled - Designated Area-sponsored));

• clause 139.313 of Part 139 (Subclass 139 (Skilled - Designated Area-sponsored));

• clause 826.322 of Part 826 (Subclass 826 (Interdependency));

• clause 862.213 of Part 862 (Subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen));

• clause 862.313 of Part 862 (Subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen));

• clause 863.214 of Part 863 (Subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen));

• clause 863.313 of Part 863 (Subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen));

• clause 881.312 of Part 881 (Subclass 881 (Skilled - Australian-sponsored Overseas Student)); and

• clause 882.312 of Part 882 (Subclass 882 (Skilled - Designated Area-sponsored Overseas Student)).

The purpose of the amendments made by this item is to remove all assurance of support provisions from time of application criteria. Following amendments made by these Regulations, all assurance of support provisions are time of decision criteria for applicants seeking to satisfy either primary or secondary criteria for the grant of a visa.

The amendments made by this item have retrospective effect where an applicant has applied for a visa prior to the commencement of these Regulations and seeks to satisfy either the primary or secondary criteria of the above subclasses of visa. These amendments are not contrary to subsection 48(2) of the Acts Interpretation Act 1901 as they advantage applicants by no longer requiring applicants to satisfy the omitted criteria at the time of application and result in no liabilities being imposed on an applicant.

Schedule 3 - Amendment relating to Public Interest Criterion 4013

Item [1] - Schedule 4, Part 1, paragraph 4013(2)(d)

This item inserts a reference to paragraph 2.43(1)(o) in Part 2 of the Principal Regulations into paragraph 4013(2)(d) of the Principal Regulations.

Paragraph 2.43(1)(o) contains one of the prescribed grounds for cancelling a visa under section 116 of the Act. Paragraph 2.43(1)(o) applies where the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

Section 116 of the Act provides that the Minister may cancel a visa if satisfied that a prescribed ground for cancelling the visa applies to the holder. Section 128 of the Act provides for cancellation of a visa where there is a prescribed ground for cancelling the visa under section 116 of the Act and the visa holder is outside Australia.

Public interest criterion 4013 in Schedule 4 to the Principal Regulations contains provisions relating to 'risk factors' and 'exclusion periods'. Paragraph 4013(2)(d) applies where the Minister is satisfied that paragraph 2.43(1)(o) (among others) applied to a person whose previously held visa had been cancelled under section 116 or 128 of the Act.

Public interest criterion 4013 operates as a Schedule 2 criterion in relation to certain visa subclasses. Where:

• a person previously held a visa which was cancelled under section 116 or 128 of the Act; and

• public interest criterion 4013 is a criterion in relation to the fresh visa application; and

• the application is made less than 3 years after the cancellation of the visa

a 3 year exclusion period applies, whereby the person is prevented from being granted a visa of that subclass unless the Minister is satisfied that, in the particular case, compelling or compassionate circumstances justify granting the visa within 3 years after the cancellation.

This amendment means that, in relevant circumstances (as outlined above), where a person's visa is cancelled because the Minister reasonably suspects that the visa was obtained as a result of the fraudulent conduct of any person, the person will be subject to the provisions of public interest criterion 4013.

Schedule 4 - Amendments relating to students offshore internet lodgment

Item [1] - Schedule 1, subparagraph 1222(1)(a)(ii)

This item omits subparagraph 1222(1)(a)(ii) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to expand arrangements so that persons outside Australia seeking to satisfy the secondary criteria for a Student (Temporary) (Class TU) visa may also use form 157A or 157E. Form 157E allows an applicant for a Class TU visa to apply using the Internet.

Item [2] - Schedule 1, subparagraph 1222 (1)(a)(iii)

This item amends subparagraph 1222(1)(a)(iii) of Schedule 1 to the Principal Regulations to renumber it subparagraph 1222(1)(a)(ii).

This amendment is consequential to the removal of subparagraph 1222(1)(a)(ii) of Schedule 1 to the Principal Regulations by these Regulations.

Item [3] - Schedule 5A, clause 5A212, excluding the heading

This item substitutes clause 5A212 of Schedule 5A to the Principal Regulations with new clause 5A212.

New clause 5A212 provides that the applicant must give evidence that he or she has the educational qualifications required by his or her education provider.

The purpose of this amendment is to reduce evidentiary requirements that must be met by applicants applying for Subclass 570 (Independent ELICOS Sector) visas who are subject to assessment level 2. The amendment made by this item simplifies the assessment process for low risk applicants while still requiring the assessment of the applicant's educational qualifications to be made.

Item [4] - Schedule 5A, paragraph 5A312(b)

This item substitutes paragraph 5A312(b) of Schedule 5A to the Principal Regulations with new paragraph 5A312(b).

New paragraph 5A312(b) provides that the applicant must give evidence that he or she has the educational qualifications required by his or her education provider.

The purpose of this amendment is to reduce evidentiary requirements that must be met by applicants applying for Subclass 571 (Schools Sector) visas who are subject to assessment level 2. The amendment made by this item simplifies the assessment process for low risk applicants while still requiring the assessment of the applicant's educational qualifications to be made.

Item [5] - Schedule 5A, paragraph 5A315(b)

This item substitutes paragraph 5A315(b) of Schedule 5A to the Principal Regulations with new paragraph 5A315(b).

New paragraph 5A315(b) provides that the applicant must give evidence that he or she has the educational qualifications required by his or her education provider.

The purpose of this amendment is to reduce evidentiary requirements that must be met by applicants applying for Subclass 571 (Schools Sector) visas who are subject to assessment level 1. The amendment made by this item simplifies the assessment process for low risk applicants while still requiring the assessment of the applicant's educational qualifications to be made.

Item [6] - Schedule 9, Part 1, item 24, column 2, paragraph (b)

This item substitutes paragraph (b) of item 24 of Part 1 of Schedule 9 to the Principal Regulations with new paragraph (b).

This amendment is consequential to amendments to subparagraphs 1222(1)(a)(ii) and (iii) of Schedule 1 to the Principal Regulations.

Schedule 5 - Amendments relating to Subclass 457 (Business (Long Stay)) visas

Item [1] - Subregulation 1.20C(2)

This item substitutes subregulation 1.20C(2) of Part 1 of the Principal Regulations with new subregulation 1.20C(2). Regulation 1.20C relates to applications for approval as a standard business sponsor.

New subregulation 1.20C(2) provides that an application for approval as a standard business sponsor by an applicant who is actively and lawfully operating a business outside Australia must be made in accordance with approved form 1067 or 1196. All other applicants can apply for approval as a standard business sponsor using one of these two forms, or approved form 1196 (internet).

The purpose of this amendment is to clarify that an application for approval as a standard business sponsor by an applicant who is actively and lawfully operating a business outside Australia cannot be made using approved form 1196 (internet), and so remove an inconsistency between regulation 1.20C and regulation 1.20DA, as they previously stood.

Regulation 1.20DA relates to approval of applicants who are actively and lawfully operating a business outside Australia as standard business sponsors. Previously, for an application to be approved under regulation 1.20DA, the Minister must have been satisfied that, among other things, the applicant was able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with approved form 1067 or 1196. There was no mention in regulation 1.20DA of approved form 1196 (internet).

So previously, regulation 1.20C permitted an applicant who was actively and lawfully operating a business outside Australia to apply for approval as a standard business sponsor using approved form 1196 (internet), whilst regulation 1.20DA prevented approval of such an applicant if undertakings were made on form 1196 (internet). This amendment removes this inconsistency.

Item [2] - Subregulation 1.20G(3)

This item substitutes new subregulation 1.20G(3) of Part 1 of the Principal Regulations. Regulation 1.20G relates to the nomination of business activities by (among others) standard business sponsors.

New subregulation 1.20G(3) provides that a nomination made by a standard business sponsor who is actively and lawfully operating a business outside Australia (or by an applicant for approval as a standard business sponsor who is actively and lawfully operating a business outside Australia) must be made in accordance with approved form 1068 or 1196. All other nominations may be made using one of these two forms, or approved form 1196 (internet).

The purpose of this amendment is to clarify that a nomination by a standard business sponsor who is actively and lawfully operating a business outside Australia (or by an applicant for approval as a standard business sponsor who is actively and lawfully operating a business outside Australia) cannot be made using approved form 1196 (internet).

Schedule 6 - Amendments relating to IASS agreements

Item [1] - Subparagraph 1.20G(1)(d)(iii)

This item amends subparagraph 1.20G(1)(d)(iii) of Part 1 of the Principal Regulations to make a minor technical amendment consequential to the insertion of paragraph (e) by item [2] below.

Item [2] - After paragraph 1.20G(1)(d)

This item inserts new paragraph 1.20G(1)(e) to Part 1 of the Principal Regulations.

New paragraph 1.20G(1)(e) enables parties to Invest Australia Supported Skills (IASS) agreements to nominate to the Minister an activity in which an individual is proposed to be employed by the person in Australia.

Item [3] - Subregulations 1.20G(2) and (4)

This item amends subregulations 1.20G(2) and (4) of Part 1 of the Principal Regulations.

The amendment to subregulation 1.20G(2) provides that business activities nominated by parties to IASS agreements correspond to the tasks of those occupations listed by the Minister in a Gazette Notice for the purposes of that subregulation.

The amendment to subregulation 1.20G(4) creates a requirement that a nomination must indicate that the applicant will be paid at the level specified in the nomination and that level will be at least the minimum salary level applicable at the time the nomination was made. "Minimum salary level" is defined in regulation 1.20B of Part 1 of the Principal Regulations.

The purpose of this amendment is to ensure that salary levels of persons nominated under IASS agreements comply with the specified minimum standard for occupations listed by the Minister in a Gazette Notice for the purposes of subparagraph 1.20G(2).

Item [4] - Paragraph 1.20G(6)(b)

This item amends paragraph 1.20G(6)(b) of Part 1 of the Principal Regulations to make a technical amendment consequential to the insertion of paragraph (c) by item [5] below.

Item [5] - After paragraph 1.20G(6)(b)

This item inserts new paragraph 1.20G(6)(c) in Part 1 of the Principal Regulations.

New paragraph 1.20G(6)(c) provides that a person who is a party to an IASS agreement is not required to pay a fee when making a business nomination.

The purpose of this amendment is to encourage parties to IASS agreements to make business nominations.

Item [6] - Paragraph 1.20H(5)(c)

This item amends paragraph 1.20H(5)(c) of Part 1 of the Principal Regulations to include a reference to IASS agreements.

This amendment provides that approval of business nominations made by parties to IASS agreements cease to have effect either 12 months after the day on which the nomination is approved by the Minister, or when the IASS agreement ceases to have effect, whichever is the earlier.

The purpose of this amendment is to stipulate the duration of an approved business nomination under an IASS agreement.

Schedule 7 - Amendment relating to models and mannequins

Item [1] - Schedule 1, paragraph 1205(3)(c), note

This item omits the note after paragraph 1205(3)(c) of Schedule 1 to the Principal Regulations.

The note, relating to the approved sponsorship form for Subclass 420 (Entertainment) visa nominees, makes a reference to persons who may be applying for one of these visas on the basis of being a model or mannequin. Visa subclass 420 (Entertainment) is one of the visa subclasses contained within visa class Cultural/Social (Class TE).

However, the Principal Regulations were amended on 1 July 2003 so that persons applying for a visa on the basis of being a model or mannequin were no longer eligible for a Subclass 420 (Entertainment) visa (see Statutory Rules 94 of 2003). These people are now instead required to apply for a Subclass 457 Business (Long Stay) visa.

The original purpose of the note was to distinguish between models and mannequins, and other persons seeking to be granted a subclass 420 (Entertainment) visa. Now that models and mannequins are no longer eligible to be granted a Subclass 420 (Entertainment) visa, the note is no longer necessary.

Through an oversight, the note after paragraph 1205(3)(c) of Schedule 1 to the Principal Regulations was not omitted at the time the 1 July 2003 amendments came into effect.

Schedule 8 - Amendments relating to Subclass 420 (Entertainment) visas

Item [1] - Subregulation 3.03(3), at the foot

This item inserts new paragraph 3.03(3)(k) in Division 3.1 of Part 3 of the Principal Regulations.

Regulation 3.03 outlines the evidence of identity and visa that persons entering Australia must provide to an Immigration clearance officer in order to comply with section 166 of the Act.

New paragraph 3.03(3)(k) provides that a non-citizen who holds a Subclass 420 (Entertainment) visa, and is the holder of a valid passport issued by a foreign country specified in a Gazette Notice made under clause 420.711 of Schedule 2 (as amended by these Regulations) must show an Immigration clearance officer evidence of the person's identity, as specified in Part 1 of Schedule 9 to the Principal Regulations, as well as give the clearance officer a completed passenger card.

The purpose of this amendment is to provide that non-citizens to whom new paragraph 3.03(3)(k) applies do not have to show evidence of their Subclass 420 visa to a clearance officer at the time they enter Australia. This is because such persons will not necessarily be given evidence of their visa at time of grant.

Item [2] - Schedule 2, clause 420.711

This item amends subdivision 420.7 of Schedule 2 to the Principal Regulations.

New subdivision 420.7 provides that no evidence of visa granted need be given if the holder holds a valid passport issued by a foreign country specified by Gazette Notice for clause 420.711. If evidence is given, it is to be given by a visa label affixed to a valid passport.

The purpose of this amendment is to provide that non-citizens to whom new clause 420.711 applies are not required to have their Subclass 420 visa evidenced. This avoids applicants having to be referred to an overseas post for visa evidence after visa grant.

Item [3] - Schedule 9, Part 1, before the note

This item inserts item 30 in Part 1 of Schedule 9 to the Principal Regulations.

Part 1 of Schedule 9 outlines the evidence of identity that a person to whom subregulation 3.03 of Part 3 of the Principal Regulations applies must provide to a clearance officer in order to comply with section 166 of the Act.

New item 30 of Part 1 of Schedule 9 provides that a person to whom paragraph 3.03(3)(k) (inserted by these Regulations) applies, that is, a non-citizen who is the holder of a Subclass 420 (Entertainment) visa and who is also the holder of a valid passport issued by a foreign country specified in the relevant Gazette Notice, must provide as evidence of identity a passport and a completed passenger card.

The purpose of new item 30 is to enable a person to whom paragraph 3.03(3)(k) applies to enter Australia with a passport and a completed passenger card only.

Schedule 9 - Amendments relating to contributory parent newborn children

Item [1] - Regulation 1.03, after definition of contact hours

This item inserts a definition of contributory parent newborn child in regulation 1.03 of Part 1 of the Principal Regulations.

The purpose of this definition is to identify children who are born at a time when at least one parent holds either a:

• Subclass 173 visa; or

• Subclass 143 visa; or

• bridging visa, where the last substantive held visa was either a Subclass 173 or Subclass 143 visa.

Where a parent applies for a temporary contributory parent visa, they may include dependants in that visa application. However, after the parent is granted the temporary visa, they cannot subsequently add dependants to that visa.

These amendments create an exception where a new child is born to the parent while they hold the temporary visa (or a bridging visa where the last substantive visa was the temporary visa). This is part of amendments that aim to facilitate such a child gaining the same visa status as their parent so as to avoid separation of the parent and newborn child.

Item [2] - After regulation 2.07AK

This item inserts new regulation 2.07AL in Part 2 of the Principal Regulations.

The purpose of this amendment is to ensure that a contributory parent newborn child whose parent holds or held a Subclass 173 visa can only apply for a Contributory Parent (Temporary) (Class UT) visa and a contributory parent newborn child whose parent holds or held a Subclass 884 visa can only apply for a Contributory Aged Parent (Temporary) (Class UU) visa.

This ensures that a child whose parent held a Subclass 884 visa cannot apply for a Contributory Parent (Temporary) (Class UT) visa and vice versa, and therefore ensures that the child applies for the same temporary visa as their parent.

Item [3] - Paragraph 2.08(1)(b)

This item substitutes paragraph 2.08(1)(b) of Part 2 of the Principal Regulations with new paragraph 2.08(1)(b).

The purpose of this amendment is to ensure that regulation 2.08 does not apply to a contributory parent newborn child where the parent has made an application for a permanent contributory parent visa.

The intention is that such a child should instead apply for a temporary contributory parent visa under new subregulation 2.08AA(1) and then be deemed to have applied for a permanent contributory parent visa under new subregulation 2.08(2). This ensures that the child can be eligible for the same permanent visa criteria as their parent.

Item [4] - Regulation 2.08, at the foot

This item inserts a note at the foot of regulation 2.08 of Part 2 of the Principal Regulations.

The purpose of this note is to alert users that special provisions apply to contributory parent newborn children.

Item [5] - After regulation 2.08

This item inserts regulation 2.08AA in Part 2 of the Principal Regulations.

The purpose of new subregulation 2.08AA(1) is to exempt a contributory parent newborn child from meeting the time of application secondary criteria in Subclasses 173 and 884. It also clarifies that a contributory parent newborn child must meet the applicable secondary criteria at the time of decision. Some secondary criteria in those subclasses will not be applicable to contributory parent newborn children. The intention is to facilitate the child being granted a temporary contributory parent visa by exempting them from time of application criteria.

The purpose of new subregulation 2.08AA(2) is to deem a contributory parent newborn child who holds a temporary contributory parent visa to have made a combined application for a permanent contributory parent visa with their parent, where the parent's permanent visa application is not finally determined or where the parent has been granted the permanent visa.

The purpose of this is to enable a contributory parent newborn child (who already holds the relevant temporary visa) to apply for the same permanent visa as their parent and to be required to satisfy the same permanent visa criteria as their parent. The purpose is to facilitate children born in these circumstances to gain the same visa status as their parent.

New subregulation 2.08AA(2) clarifies that the child is deemed to make a combined application for a permanent contributory parent visa without having to meet the requirements outlined in item 1130 or item 1130A of Schedule 1 to the Principal Regulations. This means contributory parent newborn children who hold a temporary contributory parent visa do not have to pay a fee or make the application at a certain place or by a certain method as they are taken to have made a combined application with their parent's permanent visa application.

New paragraph 2.08AA(2)(c) clarifies that the child cannot be deemed to have made the permanent visa application if it has been finally determined that the parent is refused the visa. However, a child can be deemed to have made the permanent visa application if the parent has already been granted the permanent visa or the parent's permanent visa application has not been finally determined.

New paragraph 2.08AA(3)(a) ensures that, if the contributory parent newborn child was in Australia when he or she was granted the temporary contributory parent visa, the child is taken to have made the permanent visa application upon the grant of the temporary visa. This assists the contributory parent newborn child to gain the same visa status as their parent as quickly as possible.

New paragraph 2.08AA(3)(b) ensures that, if the contributory parent newborn child was outside Australia when he or she was granted the temporary contributory parent visa, the child is taken to have made the permanent visa application immediately after the child is immigration cleared upon entering Australia. This is consistent with regulation 2.08BA.

This ensures that the contributory parent newborn child is inside Australia when he or she applies for the permanent contributory parent visa.

Item [6] - After subregulation 2.08A(2A)

This item inserts a note after subregulation 2.08A(2A) of Part 2 of the Principal Regulations.

The purpose of this note is to alert users that special provisions apply to contributory parent newborn children.

Item [7] - Paragraph 4.02(4)(i)

This item replaces a full stop with a semi colon in paragraph 4.02(4)(i) of Part 4 of the Principal Regulations.

The purpose of this amendment is to allow the addition of paragraphs (j) and (k) to subregulation 4.02(4), to provide for further decisions to be MRT-reviewable for the purposes of subsection 338(9) of the Act.

Item [8] - After paragraph 4.02(4)(i)

This item inserts paragraphs 4.02(4)(j) and 4.02(4)(k) in Part 4 of the Principal Regulations.

The purpose of this amendment is to ensure that a decision to refuse to grant a Subclass 173 or Subclass 884 visa to a contributory parent newborn child is an MRT-reviewable decision.

Item [9] - Paragraph 4.02(5)(g)

This item replaces a full stop with a semi colon in paragraph 4.02(5)(g) of Part 4 of the Principal Regulations.

The purpose of this amendment is to allow the addition of paragraphs (h) and (i) to subregulation 4.02(5), to set out who can make applications for review for the purposes of paragraph 347(2)(d) of the Act.

Item [10] - After paragraph 4.02(5)(g)

This item inserts new paragraphs 4.02(5)(h) and 4.02(5)(i) in Part 4 of the Principal Regulations.

The purpose of this amendment is to set out who can make applications for the review of a decision to refuse to grant a contributory parent newborn child a Subclass 173 or Subclass 884 visa for the purposes of paragraph 347(2)(d) of the Act.

Item [11] - Schedule 1, subitem 1221(1)

This item substitutes subitem 1221(1) of Schedule 1 to the Principal Regulations.

New subitem 1221(1) provides that if the applicant is a contributory parent newborn child (as defined in regulation 1.03), the form for an application for a Contributory Parent (Temporary) (Class UT) visa is Nil. It also provides that in any other case the application form for a Contributory Parent (Temporary) (Class UT) visa is form 47PA.

The purpose of this amendment is to allow contributory parent newborn children to make an application without having to use an approved form. The purpose is to assist the child to gain the same visa status as their parent as expediently as possible.

This amendment makes no change in relation to other applicants.

Item [12] - Schedule 1, subparagraph 1221(2)(a)(ii)

This item substitutes subparagraph 1221(2)(a)(ii) of Schedule 1 to the Principal Regulations.

New subparagraph 1221(2)(a)(ii) provides that the first instalment of the visa application charge for a Contributory Parent (Temporary) (Class UT) visa application if the applicant is a contributory parent newborn child is Nil.

New subparagraph 1221(2)(a)(iii) provides that the first instalment of the visa application charge for a Contributory Parent (Temporary) (Class UT) visa application in any other case is $1,210.

The purpose of this amendment is to allow contributory parent newborn children to make an application without having to pay a visa application charge. The purpose is to assist the child to gain the same visa status as their parent as expediently as possible.

This amendment makes no change in relation to other applicants.

Item [13] - Schedule 1, subparagraph 1221(2)(b)(ii)

This item substitutes subparagraph 1221(2)(b)(ii) of Schedule 1 to the Principal Regulations.

New subparagraph 1221(2)(b)(ii) provides that the second instalment of the visa application charge for a Contributory Parent (Temporary) (Class UT) visa application if the applicant is a contributory parent newborn child is Nil.

New subparagraph 1221(2)(b)(iii) provides that the second instalment of the visa application charge for a Contributory Parent (Temporary) (Class UT) visa application in any other case is $15,000.

This amendment makes no change in relation to other applicants.

Item [14] - Schedule 1, subparagraphs 1221(3)(c)(i) and (ii)

This item makes a technical amendment to subparagraphs 1221(3)(c)(i) and (ii) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to clarify that this is a requirement that must be met for a visa application to be validly made.

Item [15] - Schedule 1, after paragraph 1221(3)(c)

This item inserts new paragraph 1221(3)(d) in Schedule 1 to the Principal Regulations.

The purpose of this amendment is to require an application by a contributory parent newborn child to be made by notifying Immigration in writing of the birth of the contributory parent newborn child. It is intended that anyone should be able to notify Immigration of the birth of the child and that this constitutes an application.

Item [16] - Schedule 1, subitem 1221A(1)

This item substitutes subitem 1221A(1) of Schedule 1 to the Principal Regulations.

New subitem 1221A(1) provides that if the applicant is a contributory parent newborn child (as defined in regulation 1.03), the form for an application for a Contributory Aged Parent (Temporary) (Class UU) visa is Nil. It also provides that in any other case the application form for a Contributory Aged Parent (Temporary) (Class UU) visa is form 47PA.

This amendment makes no change in relation to other applicants.

Item [17] - Schedule 1, subparagraph 1221A(2)(a)(ii)

This item substitutes subparagraph 1221A(2)(a)(ii) of Schedule 1 to the Principal Regulations with new subparagraph 1221A(2)(a)(ii), and inserts new subparagraph 1221A(2)(a)(iii).

New subparagraph 1221A(2)(a)(ii) provides that the first instalment of the visa application charge for a Contributory Aged Parent (Temporary) (Class UU) visa application if the applicant is a contributory parent newborn child is Nil.

New subparagraph 1221A(2)(a)(iii) provides that the first instalment of the visa application charge for a Contributory Aged Parent (Temporary) (Class UU) visa application in any other case is $1,795

This amendment makes no change in relation to other applicants.

Item [18] - Schedule 1, subparagraph 1221A(2)(b)(ii)

This item substitutes subparagraph 1221A(2)(b)(ii) of Schedule 1 to the Principal Regulations with new subparagraph 1221A(2)(b)(ii), and inserts new subparagraph 1221A(2)(b)(iii).

New subparagraph 1221A(2)(b)(ii) provides that the second instalment of the visa application charge for a Contributory Aged Parent (Temporary) (Class UU) visa application if the applicant is a contributory parent newborn child is Nil.

New subparagraph 1221A(2)(b)(iii) provides that the second instalment of the visa application charge for a Contributory Aged Parent (Temporary) (Class UU) visa application in any other case is $15,000.

This amendment makes no change in relation to other applicants.

Item [19] - Schedule 1, paragraph 1221A(3)(b)

This item substitutes paragraph 1221A(3)(b) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to clarify that paragraph 1221A(3)(b) does not apply to contributory parent newborn children. It continues to apply to all other applicants. The intention is to allow contributory parent newborn children to be either in or outside Australia when they make their application.

Item [20] - Schedule 1, subparagraphs 1221A(3)(c)(i) and (ii)

This item makes a technical amendment to subparagraphs 1221A(3)(c)(i) and (ii) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to clarify that this is a requirement that must be met for a visa application to be validly made.

Item [21] - Schedule 1, after paragraph 1221A(3)(d)

This item inserts new paragraph 1221A(3)(e) in Schedule 1 to the Principal Regulations.

Item [22] - Schedule 2, clause 143.312

This item substitutes clause 143.312 of Part 143 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to ensure that contributory parent newborn children are sponsored for the permanent visa by the same person who sponsored their parent for the permanent visa, unless the parent's sponsor has died and there are no other available sponsors.

Specifically:

• where the parent's Subclass 173 (Contributory Parent (Temporary)) visa sponsor died before being able to sponsor the parent for a Subclass 143 (Contributory Parent) visa (and there were no other eligible sponsors) and the parent is therefore taken to have been sponsored for the Subclass 143 visa - the contributory parent newborn child does not need to be sponsored for the Subclass 143 visa; or

• where the parent's Subclass 143 visa sponsor dies before being able to sponsor the contributory parent newborn child for a Subclass 143 visa - the contributory parent newborn child does not need to be sponsored for the Subclass 143 visa.

Item [23] - Schedule 2, clause 143.322

Item [24] - Schedule 2, subparagraph 143.322(a)(ii)

Item [25] - Schedule 2, paragraph 143.322(b)

These items make technical amendments to clause 143.322 of Part 143 of Schedule 2 to the Principal Regulations to allow for the addition of new paragraph 143.322(c), inserted by the item explained below.

Item [26] - Schedule 2, after paragraph 143.322(b)

This item inserts new paragraph 143.322(c) in Part 143 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to ensure that a contributory parent newborn child can meet the criterion at time of decision that the applicant must be sponsored. It requires the contributory parent newborn child to continue to meet the requirement at time of application that they are sponsored by the same person who sponsored their parent for the visa, unless the parent's sponsor has died and there are no other available sponsors.

Item [27] - Schedule 2, clause 173.321

This item substitutes clause 173.321 of Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from the requirement to be a member of the family unit of a Subclass 173 (Contributory Parent (Temporary)) visa holder. It is not considered necessary for a contributory parent newborn child to meet this criterion as by definition they are a natural child of the parent. In addition it is intended that they are eligible for the Subclass 173 visa if they are the child of a Subclass 173 visa holder or a bridging visa holder where the last substantive visa held was a Subclass 173 visa. This is to cover a situation where the parent's temporary visa has ceased while the parent's permanent visa application is being decided.

This amendment makes no change in relation to other applicants.

Item [28] - Schedule 2, clauses 173.322 and 173.323

This item substitutes clauses 173.322 and 173.323 of Part 173 of Schedule 2 to the Principal Regulations with new clauses 173.322, 173.322A, and 173.323.

The purpose of the amendment to clause 173.322 is to ensure that a contributory parent newborn child can meet the criterion at time of decision that the applicant must be sponsored.

New paragraph 173.322(a) maintains the requirement for applicants who are not contributory parent newborn children.

New paragraphs 173.322(b) and (c) ensures that contributory parent newborn children are either:

• sponsored for the Subclass 173 (Contributory Parent (Temporary)) visa by the same person who sponsored their parent for either the Subclass 173 or Subclass 143 (Contributory Parent) visa; or

• taken to be sponsored in accordance with new clause 173.322A.

New clause 173.322A in summary provides that a contributory parent newborn child is taken to be sponsored for the Subclass 173 visa where:

• the parent holds a Subclass 143 visa and was taken to be sponsored for that visa because their Subclass 173 visa sponsor had died (and there were no other eligible sponsors). In other words, if the parent has been taken to be sponsored for the permanent visa, the child may be taken to be sponsored for the temporary visa; or

• the parent holds a Subclass 143 visa and the parent's Subclass 143 visa sponsor dies after sponsoring the parent but before being able to sponsor the child for the Subclass 173 visa. In other words, if the parent's permanent visa sponsor has died, the child may be taken to be sponsored for the temporary visa; or

• the parent holds a Subclass 173 visa (or a bridging visa where the last substantive visa held was a Subclass 173 visa) and the parent's Subclass 173 visa sponsor has died before being able to sponsor the child for the Subclass 173 visa. In other words, if the parent's temporary visa sponsor has died, the child may be taken to be sponsored for the temporary visa.

The purpose of the amendment to clause 173.323 is to exempt contributory parent newborn children from having to satisfy the public interest criteria listed in that clause. This amendment makes no change in relation to other applicants.

Contributory parent newborn children are exempted from these criteria to assist them to gain the same visa status as their parents as expediently as possible. The intention is to avoid unnecessary separation of a newborn from their parent.

Item [29] - Schedule 2, clause 173.324

This item substitutes clause 173.324 of Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from having to satisfy the special return criteria listed in that clause. This amendment makes no change in relation to other applicants.

Item [30] - Schedule 2, after clause 173.326

This item inserts clause 173.327 in Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to ensure that a contributory parent newborn child has undergone any health checks that the Minister considers appropriate given that they are exempted from the health requirements set out in clause 173.323.

Item [31] - Schedule 2, clause 173.411

This item amends clause 173.411 of Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from having to be outside Australia when the Subclass 173 (Contributory Parent (Temporary)) visa is granted. This amendment makes no change in relation to other applicants.

Item [32] - Schedule 2, after clause 173.411, including the note

This item inserts new clause 173.412 in Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to provide that a contributory parent newborn child may be in or outside Australia when the Subclass 173 (Contributory Parent (Temporary)) visa is granted. The intention is to provide flexibility to contributory parent newborn children to facilitate their gaining the same visa status as their parent.

Item [33] - Schedule 2, clause 173.511

This item amends clause 173.511 of Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from the operation of clause 173.511. This amendment makes no change in relation to other applicants.

Item [34] - Schedule 2, after clause 173.511

This item inserts clause 173.512 in Part 173 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to provide that a Subclass 173 (Contributory Parent (Temporary)) visa granted to a contributory parent newborn child permits the holder to travel to, enter and remain in Australia until a date specified by the Minister. The intention is to provide flexibility in the period of grant in order to facilitate the child gaining the same visa status as their parent as expediently as possible.

Item [35] - Schedule 2, clause 864.312

This item substitutes clause 864.312 of Part 864 of Schedule 2 to the Principal Regulations.

Specifically:

• where the parent's Subclass 884 (Contributory Aged Parent (Temporary)) visa sponsor died before being able to sponsor the parent for a Subclass 864 (Contributory Aged Parent) visa (and there were no other eligible sponsors) and the parent is therefore taken to have been sponsored for the Subclass 864 visa - the contributory parent newborn child does not need to be sponsored for the Subclass 864 visa; or

• where the parent's Subclass 864 visa sponsor dies before being able to sponsor the contributory parent newborn child for a Subclass 864 visa - the contributory parent newborn child does not need to be sponsored for the Subclass 864 visa.

Item [36] - Schedule 2, clause 864.322

Item [37] - Schedule 2, subparagraph 864.322(a)(ii)

Item [38] - Schedule 2, paragraph 864.322(b)

These items make technical amendments to clause 864.322 of Part 864 of Schedule 2 to the Principal Regulations to allow for the addition of new paragraph 864.322(c), inserted by the item explained below.

Item [39] - Schedule 2, after paragraph 864.322(b)

This item inserts new paragraph 864.322(c) in Part 864 of Schedule 2 to the Principal Regulations.

Item [40] - Schedule 2, clause 884.321

This item substitutes clause 884.321 of Part 884 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from the requirement to be a member of the family unit of a Subclass 884 (Contributory Aged Parent (Temporary)) visa holder. It is not considered necessary for a contributory parent newborn child to meet this criterion as by definition they are a natural child of the parent. In addition it is intended that they are eligible for the Subclass 884 visa if they are the child of a Subclass 884 visa holder or a bridging visa holder where the last substantive visa held was a Subclass 884 visa. This is to cover a situation where the parent's temporary visa has ceased while the parent's permanent visa application is being decided.

This amendment makes no change in relation to other applicants.

Item [41] - Schedule 2, clauses 884.322 and 884.323

This item substitutes clauses 884.322 and 884.323 of Part 884 of Schedule 2 to the Principal Regulations with new clauses 884.322, 884.322A and 884.323.

The purpose of the amendment to clause 884.322 is to ensure that a contributory parent newborn child can meet the criterion at time of decision that the applicant must be sponsored.

New paragraph 884.322(a) maintains the requirement for applicants who are not contributory parent newborn children.

New paragraphs 884.322(b) and (c) ensure that contributory parent newborn children are either:

• sponsored for the Subclass 884 (Contributory Aged Parent (Temporary)) visa by the same person who sponsored their parent for either the Subclass 884 or Subclass 864 (Contributory Aged Parent) visa; or

• taken to be sponsored in accordance with new clause 884.322A.

New clause 884.322A provides that a contributory parent newborn child is taken to be sponsored for the Subclass 884 visa where:

• the parent holds a Subclass 864 visa and was taken to be sponsored for that visa because their Subclass 884 visa sponsor had died (and there were no other eligible sponsors). In other words, if the parent has been taken to be sponsored for the permanent visa, the child may be taken to be sponsored for the temporary visa; or

• the parent holds a Subclass 864 visa and the parent's Subclass 864 visa sponsor dies after sponsoring the parent but before being able to sponsor the child for the Subclass 884 visa. In other words, if the parent's permanent visa sponsor has died, the child may be taken to be sponsored for the temporary visa; or

• the parent holds a Subclass 884 visa (or a bridging visa where the last substantive visa held was a Subclass 884 visa) and the parent's Subclass 884 visa sponsor has died before being able to sponsor the child for the Subclass 884 visa. In other words, if the parent's temporary visa sponsor has died, the child may be taken to be sponsored for the temporary visa.

The purpose of the amendment to clause 884.323 is to exempt contributory parent newborn children from having to satisfy the public interest criteria listed in that clause. This amendment makes no change in relation to other applicants.

Item [42] - Schedule 2, clause 884.326

This item substitutes clause 884.326 of Part 884 of Schedule 2 to the Principal Regulations.

Item [43] - Schedule 2, after clause 884.326

This item inserts clause 884.327 in Part 884 of Schedule 2 to the Principal Regulations.

Item [44] - Schedule 2, clause 884.411

This item amends clause 884.411 of Part 884 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from having to be outside Australia when the Subclass 884 visa is granted. This amendment makes no change in relation to other applicants.

Item [45] - Schedule 2, after clause 884.411, including the note

This item inserts clause 884.412 in Part 884 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to provide that a contributory parent newborn child may be in or outside Australia when the Subclass 884 visa is granted. The intention is to provide flexibility to contributory parent newborn children to facilitate their gaining the same visa status as their parent.

Item [46] - Schedule 2, clause 884.511

This item amends clause 884.511 of Part 884 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to exempt contributory parent newborn children from the operation of clause 884.511. This amendment makes no change in relation to other applicants.

Item [47] - Schedule 2, after clause 884.511

This item inserts clause 884.512 in Part 884 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to provide that a Subclass 884 visa granted to a contributory parent newborn child permits the holder to travel to, enter and remain in Australia until a date specified by the Minister. The intention is provide flexibility in the period of grant in order to facilitate the child gaining the same visa status as their parent as expediently as possible.

Schedule 10 - Amendments relating to student visas

Item [1] - Subregulation 1.04A(2)

This item substitutes subregulation 1.04A(2) of Part 1 of the Principal Regulations with new subregulation 1.04A(2).

New subregulation 1.04A(2) provides a revised definition of AusAID recipient to include all persons who have previously held an AusAID student visa.

The purpose of this amendment is to ensure that all people who have held an AusAID student visa and who have not spent at least two years outside Australia since completing their studies under the AusAID student visa program are included within the definition of AusAID recipient.

Item [2] - Schedule 1, subparagraph 1222(3)(c)(iv)

This item makes a technical amendment to subparagraph 1222(3)(c)(iv) of Schedule 1 to the Principal Regulations to replace the term 'post-graduate' with 'postgraduate' to ensure consistency throughout the Principal Regulations.

Item [3] - Schedule 2, clause 570.111, after definition of course fees

This item makes a technical amendment to clause 570.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [4] - Schedule 2, paragraph 570.211(4)(a)

This item substitutes paragraph 570.211(4)(a) of Schedule 2 to the Principal Regulations with new paragraph 570.211(4)(a).

New paragraph 570.211(4)(a) also includes a reference to a person who holds a Subclass 572 (Vocational Education and Training Sector) visa, subject to condition 8101, granted on the basis that the applicant proposed to commence, or had commenced, an English Language Intensive Course for Overseas Students (ELICOS) as a principal course of study.

This amendment is consequential to a change to the Gazette Notice mentioned in regulation 1.40A of the Principal Regulations. The Gazette Notice is amended so that the ELICOS are specified for Subclass 570 only, rather than both Subclasses 570 (Independent ELICOS Sector) and 572. Following amendments to the Gazette Notice, current Subclass 572 visa holders undertaking ELICOS, who wish to apply for a further student visa with permission to work, would only be eligible for a Subclass 570 visa. This amendment ensures that such persons are able to meet the criteria for the grant of a Subclass 570 visa in these circumstances.

Item [5] - Schedule 2, paragraph 570.211(5)(a)

This item substitutes paragraph 570.211(5)(a) of Schedule 2 to the Principal Regulations with new paragraph 570.211(5)(a).

New paragraph 570.211(5)(a) refers to a person who holds a Subclass 572 (Vocational Education and Training Sector) visa, subject to condition 8206, granted on the basis that the applicant proposed to commence, or had commenced, an ELICOS as a principal course of study.

This amendment is consequential to a change to the Gazette Notice mentioned in regulation 1.40A of the Principal Regulations. This Gazette Notice is amended so that ELICOS are specified for Subclass 570 (Independent ELICOS Sector) only, rather than both Subclasses 570 and 572. Following amendments to the Gazette Notice, current Subclass 572 visa holders undertaking ELICOS, who wish to apply for a further student visa in order to change their education provider, would only be eligible for a Subclass 570 visa. This amendment ensures that such persons are able to meet the criteria for the grant of a Subclass 570 visa in these circumstances.

Item [6] - Schedule 2, subclause 570.312(4)

This item substitutes subclause 570.312(4) of Schedule 2 to the Principal Regulations with new subclause 570.312(4).

New subclause 570.312(4) refers to a member of the family unit of a person who holds a Subclass 572 (Vocational Education and Training Sector) visa, subject to condition 8101, granted on the basis that the applicant proposed to commence, or had commenced, an ELICOS as a principal course of study.

This amendment is consequential to a change to the Gazette Notice mentioned in regulation 1.40A of the Principal Regulations. This Gazette Notice is amended so that ELICOS are specified for Subclass 570 (Independent ELICOS Sector) only, rather than both Subclasses 570 and 572. Following amendments to the Gazette Notice, current Subclass 572 visa holders who are members of the family unit of a person undertaking ELICOS, who wish to apply for a further visa with permission to work, would only be eligible for a Subclass 570 visa. This amendment ensures that such persons are able to meet the criteria for the grant of a Subclass 570 visa in these circumstances.

Item [7] - Schedule 2, paragraph 570.312(5)(b)

This item substitutes paragraph 570.312(5)(b) of Schedule 2 to the Principal Regulations with new paragraph 570.312(5)(b).

New paragraph 570.312(5)(b) refers to a member of the family unit of a person who holds a Subclass 572 (Vocational Education and Training Sector) visa, granted on the basis that the person proposed to commence or had commenced an ELICOS as a principal course of study.

This amendment is consequential to a change to the Gazette Notice mentioned in regulation 1.40A of the Principal Regulations. This Gazette Notice is amended so that ELICOS are specified for Subclass 570 (Independent ELICOS Sector) visas only, rather than both Subclasses 570 and 572. Following amendments to the Gazette Notice, current Subclass 572 visa holders who are members of the family unit of a person undertaking ELICOS, whose Subclass 572 visas cease before that of the person undertaking ELICOS, are eligible to be granted a Subclass 570 visa.

Item [8] - Schedule 2, clause 570.314

This item amends clause 570.314 of Schedule 2 to the Principal Regulations to also provide that a person who becomes a member of the family unit of a person who holds a Subclass 572 (Vocational Education and Training Sector) visa, after the decision to grant the Subclass 572 visa was made, is eligible for a Subclass 570 (Independent ELICOS Sector) visa.

Item [9] - Schedule 2, subclause 570.613(6), definition of full period

This item amends subclause 570.613(6) of Schedule 2 to the Principal Regulations to omit the definition of the term full period.

This is because the definition of full period is inserted into clause 570.111 by these Regulations so that the definition applies to all of Part 570.

Item [10] - Schedule 2, clause 570.617

This item substitutes clause 570.617 of Schedule 2 to the Principal Regulations with new clause 570.617.

New clause 570.617 provides that condition 8104 (permission to work for 20 hours per week) attaches to the visa of those people who make their application in Australia, satisfy the secondary criteria, and, at the time of application, already hold a student visa with permission to work or are a family member of a person who holds a Subclass 560 (Student), 562 (Iranian Postgraduate Student), 570 (Independent ELICOS Sector) or 572 (Vocational Education and Training Sector) visa and meet the requirements of subclause 570.312(4). Where the applicant does not meet these requirements, condition 8101 applies, prohibiting work in Australia.

Item [11] - Schedule 2, clause 571.111, after definition of course of study, including the notes

This item makes a technical amendment to clause 571.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [12] - Schedule 2, clause 572.111, after definition of course of study, including the note

This item makes a technical amendment to clause 572.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [13] - Schedule 2, subclause 572.613(6), definition of full period

This item amends subclause 572.613(6) of Schedule 2 to the Principal Regulations to omit the definition of the term full period.

This is because the definition of full period is inserted into clause 572.111 by these Regulations so that the definition applies to all of Part 572.

Item [14] - Schedule 2, clause 573.111, after definition of course of study, including the note

This item makes a technical amendment to clause 573.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [15] - Schedule 2, clause 573.314

This item amends clause 573.314 of Schedule 2 to the Principal Regulations to also provide that a person who becomes a member of the family unit of a person who holds a Subclass 574 (Postgraduate Research Sector) visa, after the decision to grant the Subclass 574 visa was made, is eligible for a Subclass 573 (Higher Education Sector) visa.

Item [16] - Schedule 2, subclause 573.613(6), definition of full period

This item amends subclause 573.613(6) of Schedule 2 to the Principal Regulations to omit the definition of the term full period.

This is because the definition of full period is inserted into clause 573.111 by these Regulations so that the definition applies to all of Part 573.

Item [17] - Schedule 2, subclause 573.617(3)

This item makes a technical amendment to subclause 573.617(3) of Schedule 2 to the Principal Regulations to provide that all references to "primary applicant" are changed to refer to "primary person" and all references to "member of the family unit of an applicant" are replaced with references to "member of the family unit of a person". This is because the primary person would already hold a visa and is therefore no longer an applicant.

Item [18] - Schedule 2, clause 574.111, after definition of course of study, including the note

This item makes a technical amendment to clause 574.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [19] - Schedule 2, subclause 574.222(1)

This item makes a minor amendment to subclause 574.222(1) of Schedule 2 to the Principal Regulations to insert a reference to new subclause 574.222(3A).

This amendment is consequential to amendments made to subclause 574.222(3) by item [20] below.

Item [20] - Schedule 2, subclause 574.222(3)

This item substitutes subclause 574.222(3) of Schedule 2 to the Principal Regulations with new subclauses 574.222(3) and 574.222(3A).

New subclause 574.222(3) provides that a person who holds a Subclass 560 or 562 visa, who applies in Australia and satisfies the Minister that the relevant educational institution requires them to remain in Australia during the marking of their postgraduate thesis, is eligible to be granted a Subclass 574 visa on that basis.

New subclause 574.222(3A) provides that a person who holds a Subclass 574 visa who has held that visa or a combination of that visa and 1 or more other Subclass 560 or 574 visas, for the purpose of remaining in Australia during the marking of their postgraduate thesis, for a period of no more than 6 months, is eligible to be granted a further Subclass 574 visa on that basis.

A person who holds a Subclass 574 visa who has held that visa or a combination of that visa and 1 or more other Subclass 560 or 574 visas for a continuous period of more than 6 months, on the basis of thesis marking, would only be granted a further Subclass 574 visa on that basis if exceptional circumstances justify the grant of the visa.

If a person does not meet the requirements in subclauses 574.222(3) or 574.222(3A), then subclause 574.222(1) may apply. If a person does meet the requirements in new subclauses 574.222(3) or 574.222(3A) then subclause 574.222(1) does not apply, but subclauses 574.222(2) or 574.222(4) may apply.

Item [21] - Schedule 2, subclause 574.613(6), definition of full period

This item amends subclause 574.613(6) of Schedule 2 to the Principal Regulations to omit the definition of the term full period.

This is because the definition of full period is inserted into clause 574.111 by these Regulations so that the definition applies to all of Part 574.

Item [22] - Schedule 2, clause 575.111, after definition of course of study, including the notes

This item makes a technical amendment to clause 575.111 of Schedule 2 to the Principal Regulations to provide that the term full period is to have the same meaning as in Schedule 5A.

Item [23] - Schedule 2, subclause 575.613(6), definition of full period

This item amends subclause 575.613(6) of Schedule 2 to the Principal Regulations to omit the definition of the term full period.

This is because the definition of full period is inserted into clause 575.111 by these Regulations so that the definition applies to all of Part 575.

Item [24] - Schedule 2, clause 576.111, definition of course fees

Item [25] - Schedule 2, clause 576.111, definitions of fully funded and living costs

These items amends clause 576.111 of Schedule 2 to the Principal Regulations to omit the definitions of the terms course fees, fully funded and living costs.

This is because the terms course fees, fully funded and living costs are not used in Part 576 and therefore do not need to be defined for Part 576.

Item [26] - Schedule 4, Part 2, item 4058E, column 2

This item makes a minor technical amendment to column 2 of item 4058E of Part 2 of Schedule 4 to the Principal Regulations to insert a reference to the new title for the Subclass 574 visa, "Subclass 574 (Postgraduate Research Sector)".

Item [27] - Schedule 4, Part 2, item 4058F, column 2

This item makes a minor technical amendment to column 2 of item 4058F of Part 2 of Schedule 4 to the Principal Regulations to insert a reference to the new title for the Subclass 575 visa, "Subclass 575 (Non-Award Sector)".

Item [28] - Schedule 5A, subclause 5A108(2)

This item amends subclause 5A108(2) of Schedule 5A to the Principal Regulations.

This amendment inserts a reference to the new title for the Subclass 574 (Postgraduate Research Sector) visa by replacing "Subclass 574 (Masters and Doctorate Sector)" with "Subclass 574 (Postgraduate Research Sector)".

Item [29] - Schedule 5A, paragraph 5A108(2)(c)

This item makes a technical amendment to paragraph 5A108(2)(c) of Schedule 5A to the Principal Regulations to replace the term "post-graduate" with "postgraduate" to ensure consistency throughout the Principal Regulations.

Item [30] - Schedule 5A, subclause 5A304 (9), definition of education provider

This item amends subclause 5A304(9) of Schedule 5A to the Principal Regulations to omit the definition of the term education provider.

This is because this definition of education provider should only apply to subclauses 5A304(7) and (8).

Item [31] - Schedule 5A, after subclause 5A304(9)

This item inserts new subclause 5A304(10) in Schedule 5A to the Principal Regulations.

New subclause 5A304(10) defines education provider for the purposes of subclauses 5A304(7) and (8) only to mean the education provider of the proposed principal course for an applicant who is a citizen of the People's Republic of China.

Item [32] - Schedule 5A, Part 6, heading

This item amends the heading of Part 6 of Schedule 5A to the Principal Regulations by replacing the reference to "Subclass 574 (Masters and Doctorate Sector)" with a reference to "Subclass 574 (Postgraduate Research Sector)", in accordance with the new name for that visa.

Item [33] - Schedule 5A, Part 7, heading

This item amends the heading of Part 7 of Schedule 5A to the Principal Regulations by replacing the reference to "Subclass 575 (Non-Award Foundation/Other Sector)" with "Subclass 575 (Non-Award Sector)", in accordance with the new name for that visa.

Item [34] - Schedule 5B, clause 5B101, definition of initial period, subparagraph (b)(i)

This item amends the definition of initial period in subparagraph (b)(i) of clause 5B101 of Schedule 5B to the Principal Regulations to replace the term "applicant's" with the term "primary person's".

The purpose of this amendment is to clarify that the provision relates to the primary person's principal course and not a course undertaken by a person who satisfies the secondary criteria for the student visa.

Schedule 11 - Amendments relating to resident return visas

Item [1] - after subregulation 2.50(3)

This item inserts a definition of return visa in new subregulation 2.50(4) of the Principal Regulations. The new definition allows Return (Residence) (Class BB) visas and Resident Return (Temporary) (Class TP) visas to be included in the definition of business visa under subsection 134(10) of the Act.

The purpose of this amendment is to allow the cancellation of Return (Residence) (Class BB) visas and Resident Return (Temporary) (Class TP) visas, in accordance with section 134 of the Act.

Item [2] - Schedule 1, after paragraph 1128(3)(c)

This item inserts new paragraphs 1128(3)(d) and (e) in item 1128 of Schedule 1 to the Principal Regulations.

New paragraphs 1128(3)(d) and (e) prevent an application for a Return (Residence) (Class BB) visa by a person whose most recent permanent visa was the subject of a notice of intention to cancel under subsection 135(1) of the Act, and the person had not been notified of a decision not to proceed with the cancellation, and the visa was not the subject of a decision to cancel the visa under section 134 of the Act, or who has had a business visa cancelled under section 134 of the Act and the cancellation has not been set aside by the AAT.

The purpose of this amendment is to prevent holders of certain business visas circumventing cancellation of their business visas by applying for and being granted a Return (Residence) (Class BB) visa. Holders of the following business visas are affected by this change:

• Business Skills (Migrant) (Class AD) (omitted by 1 March 2003 amendments); and

• Business Skills (Residence) (Class BH) (as it existed before 1 March 2003, that is including subclasses 840 to 844 which were omitted from Class BH by 1 March 2003 amendments); and the new

• Business Skills - Business Talent (Migrant) (Class EA).

Item [3] - Schedule 1, after paragraph 1216(3)(b)

This item inserts new paragraphs 1216(3)(c) and (d) in item 1216 of Schedule 1 to the Principal Regulations.

New paragraphs 1216(3)(c) and (d) prevent an application for a Resident Return (Temporary) (Class TP) visa by a person whose most recent permanent visa was the subject of a notice of intention to cancel under subsection 135(1) of the Act, and the person had not been notified of a decision not to proceed with the cancellation, and the visa was not the subject of a decision to cancel the visa under section 134 of the Act, or who has had a business visa cancelled under section 134 of the Act and the cancellation has not been set aside by the AAT.

The purpose of this amendment is to prevent holders of certain business visas circumventing cancellation of their business visas by applying for and being granted a Resident Return (Temporary) (Class TP) visa. Holders of the following business visas are affected by this change:

• Business Skills (Migrant) (Class AD) (omitted by 1 March 2003 amendments); and

• Business Skills (Residence) (Class BH) (as it existed before 1 March 2003, that is including subclasses 840 to 844 which were omitted from Class BH by 1 March 2003 amendments); and the new

• Business Skills - Business Talent (Migrant) (Class EA).

Schedule 12 - Amendments relating to Subclass 416 (Special Program) visas

Item [1] - Paragraph 2.07AA(2)(c)

This item makes a technical amendment to paragraph 2.07AA(2)(c) of Part 2 of the Principal Regulations.

New paragraph 2.07AA(2)(c) provides that the relevant Government has sent the material described in subparagraph 2.07AA(2)(c)(i), (ii) or (iii) to an office of Immigration that is approved in writing by the Minister as an office to which an application for a Temporary Business Entry (Class UC) visa may be made.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [2] - After subregulation 2.07AA(2)

This item inserts new subregulation 2.07AA(3) in Part 2 of the Principal Regulations.

New subregulation 2.07AA(3) provides that if an applicant for a Temporary Business Entry (Class UC) visa is described in paragraphs 2.07AA(2)(a) and (b), and the relevant Government has sent the material described in paragraph 2.07(2)(c) to an office of Immigration that is approved in writing by the Minister as an office to which an application for a Temporary Business Entry (Class UC) visa may be made, the application for the visa is taken to have been made at that office of Immigration.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [3] - Paragraph 2.07AB(1)(g)

This item makes a technical amendment to paragraph 2.07AB(1)(g) of Part 2 of the Principal Regulations by substituting new paragraph 2.07AB(1)(g). This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [4] - After subregulation 2.07AB(2)

This item inserts new subregulation 2.07AB(3) in Part 2 of the Principal Regulations.

New subregulation 2.07AB(3) provides that if a person makes an application for an Electronic Travel Authority (Class UD) visa to a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or an office of an agent who is approved in writing by the Minister as an agent with whom an application for an Electronic Travel Authority (Class UD) visa may be made, by telephone, in writing (including by fax), by electronic transmission using a computer or in any other manner approved in writing by the Minister for the purposes of this subregulation, the person is taken to have made the application at that office.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [5] - Subregulations 2.10(1), (2) and (2A)

This item substitutes subregulations 2.10(1), (2) and (2A) of Part 2 of the Principal Regulations with new subregulations 2.10(1), (2) and (2A).

New subregulation 2.10(1) provides that for section 46 of the Act, an application for a visa (not being an Internet application) must be made in accordance with regulation 2.10.

Section 46 of the Act provides the key requirements that must be met for a valid application for a visa to be made. The purpose of this amendment is to clarify the source of power under which requirements can be prescribed about where a visa application must be made.

New subregulation 2.10(2) provides that if an application for a visa is made outside Australia, the application must be made in accordance with any requirements in Division 2.2 or the item in Schedule 1 that relates to the visa, about where to make the application. Alternatively, new subregulation 2.10(2) provides that if there are no requirements of that kind, an application for a visa that is to be made outside Australia must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.

This item also inserts two new notes after subregulation 2.10(2) which explain that:

• Schedule 1 provides that applications for particular visas may be made in Australia, outside Australia, or in or outside Australia.

• a provision in Division 2.2 or in Schedule 1 may also state that an application is taken to have been made at a particular place if specified requirements are met.

New subregulation 2.10(2A) provides that if an application for a visa is made in Australia, the application must be made in accordance with any requirements in Division 2.2, or the item in Schedule 1 that relates to the visa, about where to make the application. Alternatively, new subregulation 2.10(2) provides that if there are no requirements of that kind, an application for a visa that is to be made in Australia must be made at an office of Immigration in Australia.

This item also inserts two new notes after subregulation 2.10(2A) which explain that:

• Schedule 1 provides that applications for particular visas may be made in Australia, outside Australia, or in or outside Australia.

• a provision in Division 2.2 or in Schedule 1 may also state that an application is taken to have been made at a particular place if specified requirements are met.

These technical amendments relocate requirements about making a valid visa application for specific classes of visas from regulation 2.10 to other provisions in Division 2.2 and Schedule 1 to the Regulations. This allows regulation 2.10 to serve as a general provision regarding where an application for a visa must be made. Specific requirements about where applications for a particular class of visa must be made are provided in either Division 2.2 or Schedule 1.

Item [6] - Subregulation 2.10(4)

This item makes a technical amendment to subregulation 2.10(4) of Part 2 of the Principal Regulations.

New subregulation 2.10(4) provides that for Division 2.2 (not including regulation 2.09) and Schedule 1, an office occupied by an officer of Immigration at an airport or a detention centre is an office of Immigration.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [7] - Subregulation 2.10AA(2)

This item makes a technical amendment to subregulation 2.10AA(2) of Part 2 of the Principal Regulations. This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [8] - Subparagraph 3.03(3)(i)(ii)

This item makes a technical amendment to subparagraph 3.03(3)(i)(ii) of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 3.03(3)(j) in Part 3 of the Principal Regulations.

Item [9] - After paragraph 3.03(3)(i)

This item inserts new paragraph 3.03(3)(j) in Part 3 of the Principal Regulations.

Regulation 3.03 provides identity and visa evidencing requirements that persons entering Australia must provide to a clearance officer in order to comply with section 166 of the Act.

New paragraph 3.03(3)(j) provides that a non-citizen who holds a Subclass 416 (Special Program) visa, and is the holder of a valid passport issued by a foreign country specified in a Gazette Notice for the purposes of this paragraph, must show a clearance officer evidence of the person's identity, as specified in Part 1 of Schedule 9 to the Principal Regulations, as well as give the clearance officer a completed passenger card.

A non-citizen to whom new paragraph 3.03(3)(j) applies does not need to show evidence of their Subclass 416 visa at the time they enter Australia. Amendments made by these Regulations will make a subclass 416 visa subject to condition 8403 of Schedule 8 to the Principal Regulations. Condition 8403 makes it a requirement that visa holders must visit an Immigration office specified by the Minister for the purpose, within a time specified by the Minister for the purpose, to have evidence of the visa placed in the holder's passport.

Item [10] - Schedule 1, paragraph 1205(3)(a)

This item amends paragraph 1205(3)(a) of Schedule 1 to the Principal Regulations by inserting a reference to Subclass 416 (Special Program).

Paragraph 1205(3)(a), as amended, provides that an application for a Cultural/Social (Temporary) (Class TE) visa (other than an application by a person seeking to satisfy the criteria for the grant of a Subclass 416 visa or a Subclass 420 (Entertainment) visa) may be made in or outside Australia, but not in immigration clearance.

This amendment is consequential to the insertion of new paragraph 1205(3)(ba) in Schedule 1 to the Principal Regulations.

Item [11] - Schedule 1, paragraph 1205(3)(b)

This item amends paragraph 1205(3)(b) of Schedule 1 to the Principal Regulations by inserting a reference to Subclass 416 (Special Program).

Paragraph 1205(3)(b), as amended, provides that an applicant for a Cultural/Social (Temporary) (Class TE) visa (other than an application by a person seeking to satisfy the criteria for the grant of a Subclass 416 visa or a Subclass 420 (Entertainment) visa) must be in Australia to make an application in Australia.

This amendment is consequential to the insertion of new paragraph 1205(3)(ba) in Schedule 1 to the Principal Regulations.

Item [12] - Schedule 1, after paragraph 1205(3)(b)

This item inserts new paragraph 1205(3)(ba) in Schedule 1 to the Principal Regulations.

New paragraph 1205(3)(ba) provides that an application for a Cultural/Social (Temporary) (Class TE) visa, made by a person seeking to satisfy the criteria for the grant of a Subclass 416 (Special Program) 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 for new subparagraph 1205(3)(ba)(i); or

• having the application delivered by a courier service to the address specified in a Gazette Notice for new subparagraph 1205(3)(ba)(ii); or

• having the application sent by facsimile to the address specified in a Gazette Notice for new subparagraph 1205(3)(ba)(iii).

The purpose of this amendment is to provide that an application for a Subclass 416 visa must be made in Australia by the above means for a valid application made, whether the applicant is in or outside Australia at the time of application. The repatriation of visa application processing to specified addresses in Australia increases efficiency and improves the consistency and standard of decision making.

Item [13] - Schedule 1, paragraph 1205(3)(c)

This item makes a technical amendment to paragraph 1205(3)(c) of Schedule 1 to the Principal Regulations. This amendment is consequential to amendments made to subitem 1205(3) of Schedule 1 to the Principal Regulations.

Item [14] - Schedule 1, after paragraph 1208A(3)(ba)

The item inserts new paragraphs 1208A(3)(bb) and (bc) in Schedule 1 to the Principal Regulations.

New paragraph 1208A(3)(bb) provides that if an application for an Electronic Travel Authority (Class UD) visa is made outside Australia, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or at an office of an agent who is approved in writing by the Minister as an agent with whom an application for a Class UD visa may be made.

New paragraph 1208A(3)(bc) provides that if an application for a Class UD visa is made in Australia, the application must be made in immigration clearance or at an office of an agent who is approved in writing by the Minister as an agent with whom an application for a Class UD visa may be made.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [15] - Schedule 1, after paragraph 1214(3)(c)

The item inserts new paragraph 1214(3)(ca) in Schedule 1 to the Principal Regulations.

New paragraph 1214(3)(ca) provides that if an application for a Long Stay (Visitor) (Class TN) visa is made outside Australia, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or at an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for Class TN visas.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [16] - Schedule 1, after paragraph 1214A(3)(b)

The item inserts new paragraph 1214A(3)(ba) in Schedule 1 to the Principal Regulations.

New paragraph 1214A(3)(ba) provides that if an application for a Medical Treatment (Visitor) (Class UB) visa is made outside Australia, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or at an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for Class UB visas.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [17] - Schedule 1, after paragraph 1218(3)(bb)

The item inserts new paragraph 1218(3)(bc) in Schedule 1 to the Principal Regulations.

New paragraph 1218(3)(bc) provides that if an application (not being an Internet application) for a Short Stay (Visitor) (Class TR) visa is made outside Australia, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or at an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for Class TR visas.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [18] - Schedule 1, paragraph 1222(3)(aa)

This item makes a technical amendment to paragraph 1222(3)(aa) of Schedule 1 to the Principal Regulations. This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [19] - Schedule 1, after paragraph 1222(3)(cd)

The item inserts new paragraphs 1222(3)(ce) and (cf) in Schedule 1 to the Principal Regulations.

New paragraph 1222(3)(ce) provides that if an application (not being an Internet application) for a Student (Temporary) (Class TU) visa is made outside Australia, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for Class TU visas.

New paragraph 1222(3)(cf) provides that if an application for a Class TU visa is made inside Australia, using form 157P, the application must be made at:

• an office of Immigration in Australia; or

• if the educational institution at which the applicant is enrolled is approved in writing by the Minister for the purpose of receiving applications for Class TU visas, that educational institution; or

• if the applicant holds a Subclass 560, 563, 570, 571, 572, 573, 574, 575 or 576 visa as a member of the family unit of a person who, having satisfied the primary criteria, holds a Subclass 560, 562, 570, 571, 572, 573, 574, 575 or 576 visa, and the educational institution at which that person is enrolled is approved in writing by the Minister for the purpose of receiving applications for Class TU visas, that educational institution.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [20] - Schedule 1, after paragraph 1223A(3)(d)

The item inserts new paragraphs 1223A(3)(e) and (f) in Schedule 1 to the Principal Regulations.

New paragraph 1223A(3)(e) provides that if an application for a Temporary Business Entry (Class UC) visa is made outside Australia and the applicant seeks a visa that will permit them to remain in Australia for a period, or periods, of 3 months or less (whether or not the visa permits the applicant to travel to and enter Australia), the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, or an office of a visa application agency that is approved in writing by the Minister with whom an application for a Class UC visa may be made.

New paragraph 1223A(3)(f) provides that if an application is made in Australia, in accordance with subregulation 2.07AA(2), the application must be made at an office of Immigration that is approved in writing by the Minister as an office to which an application for a Class UC visa may be made.

This amendment is consequential to amendments made to regulation 2.10 of Part 2 of the Principal Regulations.

Item [21] - Schedule 2, Subdivision 416.21, note

This item substitutes the note after Subdivision 416.21 of Schedule 2 to the Principal Regulations with a new note.

The new note after Subdivision 416.21 makes it clearer that if an applicant for a Subclass 416 (Special Program) visa is outside Australia at time of application, there are no criteria to be satisfied at time of application.

Item [22] - Schedule 2, clause 416.211

This item amends clause 416.211 of Schedule 2 to the Principal Regulations.

New clause 416.211 provides that if an applicant for a Subclass 416 (Special Program) visa is in the migration zone at time of application, the applicant meets the requirements of clause 416.211.

This amendment is consequential to the insertion of new paragraph 1205(3)(ba) of Schedule 1 to the Principal Regulations which makes it a requirement that a person seeking to make a valid application for a Subclass 416 visa must post, deliver or fax the application to an address in Australia which has been specified by Gazette Notice, whether the applicant is in or outside Australia.

Item [23] - Schedule 2, clause 416.221

This item substitutes clause 416.221 of Schedule 2 to the Principal Regulations with new clause 416.221.

New clause 416.221 provides that if an applicant for a Subclass 416 (Special Program) visa was outside Australia at time of application, or the applicant was in the migration zone at time of application and the applicant does not hold a Subclass 416 visa, the applicant must satisfy the criteria in clauses 416.222 to 416.226.

Item [24] - Schedule 2, clause 416.225

This item substitutes clause 416.225 of Schedule 2 to the Principal Regulations with new clause 416.225.

New clause 416.225 provides that if an applicant for a Subclass 416 (Special Program) visa was outside Australia at time of application and has previously been in Australia, the applicant must satisfy special return criteria 5001 and 5002 of Schedule 5 to the Principal Regulations. In summary, special return criterion 5001 applies to a non-citizen who has been deported from Australia or has had their visa cancelled under section 501, 501A or 501B of the Act (unless the cancellation has been revoked). In general terms, special return criterion 5002 applies to a non-citizen who has been removed from Australia under section 198, 199 or 205 of the Act.

Item [25] - Schedule 2, clause 416.226

This item amends clause 416.226 of Schedule 2 to the Principal Regulations.

New clause 416.226 provides that if an applicant for a Subclass 416 (Special Program) visa is in the migration zone at time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

Item [26] - Schedule 2, clause 416.227

This item substitutes clause 416.227 of Schedule 2 to the Principal Regulations with new clause 416.227.

New clause 416.227 provides that if, at time of application, an applicant for a Subclass 416 (Special Program) visa was in the migration zone and was also the holder of a Subclass 416 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the criteria for the grant of a Subclass 416 visa.

Item [27] - Schedule 2, clause 416.312

This item substitutes clause 416.312 of Schedule 2 to the Principal Regulations with new clause 416.312.

New clause 416.312 provides that if a secondary applicant for a Subclass 416 (Special Program) visa is outside Australia at the time of application and the application is made separately from that of the person who seeks to satisfy or has satisfied the primary criteria, that person is, or is expected soon to be, in Australia.

The purpose of this amendment is to ensure that an applicant who:

• seeks to satisfy the secondary criteria for the grant of a Subclass 416 visa; and

• is outside Australia at the time of application; and

• makes their application separately from the primary applicant;

is not precluded from being eligible for the grant of the visa solely on the basis that they may have the intention to seek a permanent visa at a later date.

Item [28] - Schedule 2, clause 416.324

This item substitutes clause 416.324 of Schedule 2 to the Principal Regulations with new clause 416.324.

New clause 416.324 provides if an applicant for a Subclass 416 (Special Program) visa was outside Australia at time of application and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002 of Schedule 5 to the Principal Regulations. In summary, special return criterion 5001 applies to a non-citizen who has been deported from Australia or has had their visa cancelled under section 501, 501A or 501B of the Act (unless the cancellation has been revoked). In general terms, special return criterion 5002 applies to a non-citizen who has been removed from Australia under section 198, 199 or 205 of the Act.

Item [29] - Schedule 2, clause 416.324A

This item amends clause 416.324A of Schedule 2 to the Principal Regulations.

New clause 416.324A provides that if a secondary applicant for a Subclass 416 (Special Program) visa was in the migration zone at time of application, the applicant has complied substantially with the conditions that apply, or applied, to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

Item [30] - Schedule 2, clauses 416.411 and 416.412

This item substitutes clauses 416.411 and 416.412 of Schedule 2 to the Principal Regulations with new clauses 416.411 and 416.412.

New clause 416.411 provides that if an applicant for a Subclass 416 (Special Program) visa was in the migration zone at time of application, the applicant must be in the migration zone, but not in immigration clearance, at the time of grant.

New clause 416.412 provides that if an applicant for a Subclass 416 visa was outside Australia at time of application, the applicant must be outside Australia at time of grant.

Item [31] - Schedule 2, clause 416.611

This item substitutes clause 416.611 of Schedule 2 to the Principal Regulations with new clause 416.611. New clause 416.611 contains a technical amendment and continues to require a Subclass 416 (Special Program) visa to be subject to mandatory condition 8107 of Schedule 8 to the Principal Regulations where an applicant satisfies the primary criteria.

This item also inserts new clause 416.611A in Schedule 2 to the Principal Regulations, by providing that a Subclass 416 visa may be subject to condition 8403 of Schedule 8 to the Principal Regulations where an applicant satisfies either the primary secondary criteria.

Condition 8107 deals generally with visas that were granted to enable the holder to be employed in Australia and provides, amongst other things, that a visa holder must not cease to be employed, or cease the activity, for which the visa was granted, or undertake employment or an activity inconsistent or in addition to the employment or activity for which the visa was granted.

Condition 8403 provides that the holder must visit an Immigration office specified by the Minister for the purpose, within a time specified by the Minister for the purpose, to have evidence of the visa placed in the holder's passport.

The amendment made by this item supplement amendments to regulation 3.03 of the Principal Regulations. This amendment ensures that certain prescribed passport holders granted a Subclass 416 visa who are permitted to enter Australia without a visa label evidencing the grant of the Subclass 416 visa, must obtain one after entering Australia.

Item [32] - Schedule 9, Part 1, after item 28

This item inserts new item 29 in Part 1 of Schedule 9 to the Principal Regulations.

Part 1 of Schedule 9 outlines special entry and clearance arrangements that a person, to whom regulation 3.03 of Part 3 of the Principal Regulations applies, must provide to a clearance officer in order to comply with section 166 of the Act.

New item 29 provides that a person who holds a Subclass 416 (Special Program) visa and holds a valid passport issued by a foreign country specified in a Gazette Notice for new paragraph 3.03(3)(j) must provide a passport and a completed passenger card as evidence of identity to a clearance officer.

The purpose of new item 29 is to enable a person who holds a Subclass 416 visa to enter Australia with a passport and a completed passenger card only. Subclass 416 visa holders are not required to provide a clearance officer with evidence of the grant of a visa at time of entry in Australia.