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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 3) 2004 NO. 131
Issued by the Minister for Immigration and Multicultural
and Indigenous
Affairs
Migration Act 1958
Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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 Migration Regulations 1994 (the Principal Regulations) to: introduce a new visa, the Skilled - Independent Regional visa; place the Professional Development visa and sponsored categories within the Business (Long Stay) visa into the sponsorship framework established by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (the Sponsorship Act); and modify certain student visa criteria.
The Regulations reflect regular changes that are made to the Principal Regulations every 1 July and 1 November. These are amendments that give effect to the ongoing update of immigration policy and regulations.
In particular, the Regulations effect changes to the Principal Regulations to:
• introduce a new two stage visa arrangement of temporary residence followed by permanent residence for people with needed skills, and members of their family unit, who are willing to live and work in regional Australia;
• place the Professional Development visa and sponsored visa categories within the Business (Long Stay) visa into the sponsorship framework established by the Sponsorship Act, including the introduction of sanctions for sponsors that fail to comply with their undertakings;
• provide review rights for certain sponsored Business (Long Stay) visa applicants whose application has been refused, and to sponsors of Professional Development and sponsored Business (Long Stay) visa holders who have been sanctioned under the Sponsorship Act;
• allow for the disclosure in certain circumstances of personal information about Professional Development visa holders (or former holders) and sponsored Business (Long Stay) visa holders (or former holders);
• provide for the application of an exclusion period, in certain circumstances, to Professional Development visa holders who breach certain visa conditions, affecting their ability to apply for another visa;
• clarify that an applicant for a student visa is subject to the assessment level that applied at the time of application for the student visa; and
• ensure that persons who have ever held an AusAID student visa must remain outside Australia for two years before being eligible for certain other visas, unless certain circumstances apply.
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.
The Regulations commence on 1 July 2004.
0403379A - 040525Z
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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. Subsection 5(1) of the Act provides, amongst other things, that "prescribed" means prescribed by the regulations.
In addition to subsection 504(1), the following provisions may apply:
• paragraph 5(2)(b) of the Act, which provides that a person has functional English at a particular time if the person provides the Minister with prescribed evidence of the person's English language proficiency;
• section 31, which deals with classes of visa. In particular:
- subsection 31(1) of the Act provides that there are to be prescribed classes of visas;
- subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class;
- subsection 31(4) of the Act provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;
- subsection 31(5) of the Act provides that a visa is a visa of a particular class if the Act or the regulations specify that it is a visa of that class;
• subsection 40(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
• subsection 41(1) of the Act, which provides that the regulations may provide that visas, or visas of a specified class are subject to specified conditions;
• subsection 41(2) of the Act, which provides that without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to:
- a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
- a condition imposing restrictions about the work that may be done in Australia by the holder;
• subsection 45B(1) of the Act, which provides that the amount of visa application charge is the amount prescribed in relation to the application (not exceeding the visa application charge limit);
• subsection 45B(2) of the Act, which provides that the amount prescribed in relation to an application may be nil;
• section 46 of the Act, which provides when an application for a visa is a valid application, and in particular:
- subsection 46(2) of the Act, which provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations, the application is taken to have been validly made;
- subsection 46(3) of the Act, which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and
- subsection 46(4) of the Act, which provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made;
• subsection 52(1) of the Act, which provides that a visa applicant or interested person must communicate with the Minister in the prescribed way;
• section 70 of the Act, which provides that if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa, subject to the regulations;
• subsection 71(1) of the Act, which provides that evidence of a visa is to be given in a way prescribed for giving the evidence;
• subsection 93(1) of the Act, which provides that the Minister shall make an assessment of an applicant's points score by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant;
• section 140A of the Act, which provides that Division 3A of Part 2 of the Act (relating to sponsorship) applies to visas of a prescribed kind;
• section 140B of the Act, which provides that the regulations may provide that sponsorship by an approved sponsor is a criterion for a visa of a prescribed kind (however described), and that this criterion is in addition to any other criteria for the visa that may be prescribed or set out under any other provision of the Act, or any other Act;
• section 140C of the Act, which provides for sponsorship as a criterion for a valid visa application and in particular:
- subsection 140C(1) of the Act, which provides that the regulations may provide that it is a criterion for a valid application for a visa of a prescribed kind (however described) that the applicant is sponsored by an approved sponsor;
- subsection 140C(2) of the Act, which provides that the regulations may provide that it is a criterion for a valid application for a prescribed kind of visa that the visa applicant's proposed sponsor has applied to be an approved sponsor at, or before, the time the visa application is made;
- subsection 140C(3) of the Act, which provides that a prescribed criterion under subsection (1) or (2) is in addition to any other criteria for a valid application for the visa that may be prescribed under any other provision of the Act or any other Act, or are set out in the Act or any other Act;
• section 140D of the Act, which provides for who is an approved sponsor;
• section 140E of the Act, which provides that the Minister must approve a person as a sponsor if prescribed criteria are satisfied and that different criteria may be prescribed for different kinds of visa (however described);
• section 140F of the Act, which provides that the regulations may establish a process for the Minister to approve a person as a sponsor and that different processes may be prescribed for different kinds of visa (however described).
• section 140G of the Act, which provides that an approval as a sponsor may be on terms specified in the approval, the terms must be of a kind prescribed by the regulations, and that different kinds of terms may be prescribed for different kinds of visa (however described);
• subsection 140H(1) of the Act, which provides that the regulations may require an applicant for approval as a sponsor of a person for a visa to make prescribed undertakings (such as to pay debts to the Commonwealth incurred by the sponsored visa applicant);
• subsection 140H(4) of the Act, which provides that different undertakings may be prescribed for different kinds of visa (however described);
• subsection 140I(4) of the Act, which provides that - in relation to amounts payable to the Commonwealth - a limit to the costs of the Commonwealth in locating and detaining a certain person may be prescribed;
• subsection 140J(2) of the Act, which provides that the regulations may prescribe circumstances in which the Minister may take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor) as a result of the breach of the undertaking, and the criteria to be taken into account by the Minister in determining what action to take under that section;
• subsection 140J(4) of the Act, which provides that different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described);
• subsection 140K(1) of the Act, which provides that other circumstances in which the Minister may take one or more of the actions mentioned in section 140L (cancelling or barring approval as a sponsor), and the criteria to be taken into account by the Minister in determining what action to take under that section may be prescribed;
• subsection 140K(4) of the Act, which provides that different circumstances and different criteria may be prescribed for different kinds of temporary visa (however described);
• section 140L of the Act, which lists the actions the Minister may (or must) take against approved sponsors or former approved sponsors under sections 140J and 140K relating to barring or cancelling approval as a sponsor;
• section 140N of the Act, which provides that the regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under section 140J or 140K and to place a bar on a person under section 140J or 140K and that different processes may be prescribed for different kinds of temporary visa (however described);
• section 140O of the Act, which provides for the Minister to waive a bar placed on a person under section 140J or 140K in certain circumstances. In particular:
- subsection 140O(1) provides that section 140O applies to temporary visas of a prescribed kind (however described);
- subsection 140O(2) provides that the Minister may, in prescribed circumstances, waive a bar placed on a person under section 140J or 140K in relation to a visa to which section 140O applies;
- subsection 140O(3) provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar; and
- subsection 140O(4) provides that different circumstances and different criteria may be prescribed for different kinds of temporary visas (however described);
• section 140P of the Act, which provides that the regulations may establish a process for the Minister to waive a bar placed on a person under section 140J or 140K and that different processes may be prescribed for different kinds of temporary visa (however described);
• subsection 140Q(1) of the Act, which provides that the circumstances in which, and for how long, an undertaking arising out of the sponsorship of a particular temporary visa holder remains enforceable against the sponsor concerned may be prescribed, provided that the visa holder ceases to hold the visa for which he or she was sponsored or the sponsor ceases to be an approved sponsor of the visa holder for the visa (whether because the approval is cancelled or for any other reason);
• subsection 140Q(2) of the Act, which provides that different circumstances and periods may be prescribed for different kinds of temporary visa (however described);
• subsection 140V(1) of the Act, which provides that the Minister may disclose to an approved sponsor or former approved sponsor personal information of a prescribed kind about a visa holder or former visa holder sponsored;
• subsection 140V(2) of the Act, which provides that the circumstances in which the Minister may disclose the personal information mentioned in subsection 140V(1) may be prescribed;
• subsection 140V(3) of the Act, which provides that the circumstances in which the approved sponsor, or former approved sponsor, may use or disclose personal information disclosed under subsection 140V(1) of the Act may be prescribed;
• section 140W of the Act, which provides that current Regulations, including those dealing with sponsorship arrangements, can continue to operate effectively alongside the new sponsorship framework;
• paragraph 338(2)(d) of the Act, which provides that where it is a criterion for the grant of a visa that the non-citizen is sponsored by an approved sponsor:
- the non-citizen must be sponsored by an approved sponsor at the time of application to review the decision to refuse to grant the visa; or
- the application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending;
• paragraph 504(1)(g) of the Act, which provides that the regulations may require assurances of support to be given in relation to person seeking to travel to and enter, or remain in, Australia;
• section 505 of the Act, which provides that, to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
- is to get a specified person or organisation, or a person or organisation in a specified class, to give an opinion on, or make an assessment of, finding or decision about a specified matter;
- is to have regard to that opinion, assessment, finding or decision, or take that opinion, assessment, finding or decision to be correct;
for the purpose of deciding whether the applicant satisfies the criterion.
ATTACHMENT B
Details of the proposed Migration Amendment Regulations 2004 (No. 3)
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 3).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 July 2004.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that:
• Schedules 1 and 4 amend the Migration Regulations 1994 (the Principal Regulations);
• Schedule 2 amends the Principal Regulations, as amended by Schedule 1; and
• Schedule 3 amends the Principal Regulations, as amended by Schedules 1 and 2.
Regulation 4 - Transitional
Subregulation 4(1) provides that the amendments made by:
• Schedule 1; and
• Items [5], [7] and [8] of Schedule 2; and
• Items [1] and [3] of Schedule 4
apply in relation to an application made on or after 1 July 2004.
Subregulation 4(2) provides that:
• the amendments made by items [1] and [2] of Schedule 2; and
• the amendment of paragraph 4.02(4)(g) of the Principal Regulations made by item [3] of Schedule 2;
apply in relation to an application for approval as an approved professional development sponsor made on or after 1 July 2004.
• Subregulation 4(3) provides that the amendment of paragraph 4.02(4)(h) of the Principal Regulations made by item [3] of Schedule 2, and the amendment of paragraph 4.02(5)(g) of the Principal Regulations made by item [4] of Schedule 2; applies in relation to an application by a sponsor for approval as an approved professional development sponsor:
• made on or after 1 July 2004; and
• approved on or after 1 July 2004.
Subregulation 4(4) provides that the amendment made by item [6] of Schedule 2 applies in relation to an application for a visa made on or after 1 July 2004 if:
• the applicant is sponsored by a sponsor who applied for approval as an approved professional development sponsor on or after 1 July; and
• the sponsor's application for approval as an approved professional development sponsor was approved on or after 1 July 2004.
Subregulation 4(5) provides that, despite items [1], [2], [3] and [4] of Schedule 2 and item [17] of Schedule 3, Division 1.4C and paragraphs 4.02(4)(g), (h) and (i) and 4.02(5)(g) of the Principal Regulations (as in force immediately before 1 July 2004) continue to apply to:
• an application for approval as a professional development sponsor made before
1 July 2004; and
• a sponsor who applied for approval as a professional development sponsor before 1 July 2004 and whose application for approval as a professional development sponsor was approved.
Subregulation 4(6) provides that the amendments made by Schedule 3 apply in relation to each of the following:
• an application for approval as a sponsor made on or after 1 July 2004;
• the nomination of an activity, to be undertaken in Australia by the prospective holder of a Subclass 457 (Business (Long Stay)) visa, made on or after 1 July 2004;
• an application for a visa made on or after 1 July 2004.
Subregulation 4(7) provides that the amendment made by item [2] of Schedule 4 applies in relation to an application for a visa:
• made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before 1 July 2004; or
• made on or after 1 July 2004
Schedule 1 - Amendments relating to Skilled independent regional (Provisional) (Class UX) visas
Item [1] - After note after subregulation 1.12(7)
This item inserts new subregulation 1.12(8) into Part 1 of the Principal Regulations, relating to the definition of `member of the family unit'.
New subregulation 1.12(8) provides that in addition to the definition of member of the family unit in subregulation 1.12(1) a person is a member of the family unit of an applicant who seeks to be granted a visa described in paragraph 1.12(8)(a), (b) or (c), if at the time of application:
• the person is the holder of, or the last substantive visa held by the person since last entering Australia was, a Skilled - Independent Regional (Provisional) (Class UX) visa; and
• the Skilled - Independent Regional (Provisional) visa was granted on the basis that the person was a member of the family unit of the holder of a Skilled - Independent Regional (Provisional) visa, granted on the basis that the holder satisfied the primary criteria; and
• the person is included in the application for an Employer Nomination (Residence) (Class BW), Business Skills (Residence) (Class DF) or Skilled Independent (Migrant) (Class BN) visa.
The purpose of new subregulation 1.12(8) is to expand the definition of member of the family unit in the limited circumstances described in subregulation 1.12(8).
Item [2] - Paragraph 1.20(4)(f)
This item amends paragraph 1.20(4)(f) of Part 1 of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 1.20(4)(g) into the Principal Regulations, by these Regulations.
Item [3] - After paragraph 1.20(4)(f)
This item inserts new paragraph 1.20(4)(g) into Part 1 of the Principal Regulations. New paragraph 1.20(4)(g) provides that regulation 1.20 (concerning the obligations of a sponsor of a visa applicant) does not apply to a Skilled - Independent Regional (Provisional) (Class UX) visa.
The purpose of this amendment is to exempt sponsors of applicants applying for a Skilled - Independent Regional (Provisional) (Class UX) visa from the operation of regulation 1.20. Thus as sponsors of Skilled - Independent Regional (Provisional) visa applicants are State and Territory Government agencies, these agencies will be exempt from the operation of regulation 1.20 and will not be required to undertake the obligations mentioned in that provision.
Item [4] - Subparagraph 2.08B(1)(a)(viii)
This item amends subparagraph 2.08B(1)(a)(viii) of Part 2 of the Principal Regulations. This amendment is consequential to the insertion of new subparagraph 2.08B(1)(a)(ix) into the Principal Regulations, by these Regulations.
Item [5] - After subparagraph 2.08B(1)(a)(viii)
This item inserts new subparagraph 2.08B(1)(a)(ix) into Part 2 of the Principal Regulations. New subparagraph 2.08B(1)(a)(ix) provides that if a person applies for a Skilled - Independent Regional (Provisional) (Class UX) visa, then they may add a dependent child to their application, subject to meeting the additional requirements of regulation 2.08B.
The purpose of this amendment is to enable a person who applies for a Skilled - Independent Regional (Provisional) (Class UX) visa, to add a dependent child to his or her application.
Item [6] - After regulation 2.08D
This item inserts new regulation 2.08DA into Part 2 of the Principal Regulations.
New regulation 2.08DA provides that, in the circumstances outlined in new subregulation 2.08DA(1), applicants for a Skilled - Independent (Migrant) (Class BN) visa may be invited by the Minister to apply for a Skilled - Independent Regional (Provisional) (Class UX) visa. One of the relevant circumstances is that, on the basis of information available to the Minister, if the person had applied for a Skilled - Independent Regional (Provisional) visa, it is likely that the person would have been granted the visa. Relevant to this assessment is that applicants for a Skilled - Independent Regional (Provisional) visa will, as part of the amendments introduced by these Regulations, have to meet a lower pass mark compared to other applicants for general skilled visas. This change is effected by new clause 495.222.
If a person is invited to apply for a Skilled - Independent Regional (Provisional) visa in response to the invitation, they must do so within 6 months of receiving the invitation. However, if a person fails to lodge their application within the six months, they can still apply after that date, but will have to pay a higher amount of visa application charge, in accordance with new subitem 1218A(2), introduced by these regulations.
The purpose of new regulation 2.08DA is to enable the Minister to target certain applicants for a Skilled - Independent (Migrant) (Class BN) visa and encourage them to apply for a Skilled - Independent Regional (Provisional) (Class UX) visa within
6 months of receiving the invitation to apply letter from the Minister. The benefits of accepting the Minister's invitation and applying for a Skilled - Independent Regional (Provisional) visa include:
• the reduced visa application charge associated with a Skilled - Independent Regional (Provisional) visa; and
• the likelihood that the application will be successful as the Minister only invites a person to apply if satisfied that it is likely that the visa will be granted.
Item [7] - Regulation 2.26A, heading
This item substitutes the heading to regulation 2.26A of Part 2 of the Principal Regulations, and is consequential to the insertion of paragraph 2.26A(1)(f) into Part 2 of the Principal Regulations, by these regulations.
Item [8] - Paragraph 2.26A(1)(e)
This item amends paragraph 2.26A(1)(e) of Part 2 of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 2.26A(1)(f) into Part 2 of the Principal Regulations, by these Regulations.
Item [9] - After paragraph 2.26A(1)(e)
This item inserts new paragraph 2.26A(1)(f) into Part 2 of the Principal Regulations.
New paragraph 2.26A(1)(f) provides that regulation 2.26A applies to a Skilled - Independent Regional (Provisional) (Class UX) visa. Regulation 2.26A (as amended by these Regulations) prescribes the qualifications and number of points required for skilled permanent visas and Skilled - Independent Regional (Provisional) (Class UX) visas.
Item [10] - Subparagraph 2.26A(2)(a)(iv)
This item amends subparagraph 2.26A(2)(a)(iv) of Part 2 of the Principal Regulations, and is consequential to the insertion of new subparagraph 2.26A(2)(a)(v) into Part 2 of the Principal Regulations, by these Regulations.
Item [11] - After subparagraph 2.26A(2)(a)(iv)
This item inserts new subparagraph 2.26A(2)(a)(v) into Part 2 of the Principal Regulations.
New subparagraph 2.26A(2)(a)(v) provides that for subsection 93(1) of the Act (which deals with determination of an applicant's points score) each qualification specified in column 2 of an item in Part 1, 2, 3, 4, 5, 6, 7, 8 or 10 of Schedule 6A is prescribed as a qualification in relation to the grant, to the applicant, of a Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
The purpose of this amendment is to include a Subclass 495 (Skilled - Independent Regional (Provisional)) visa as a subclass of visa to which the points score regime in the Act relates.
Item [12] - Subparagraph 2.27B(1)(c)(v)
This item amends subparagraph 2.27B(1)(c)(v) of Part 2 of the Principal Regulations, and is consequential to the insertion of new subparagraph 2.27B(1)(c)(vi) into the Principal Regulations, by these Regulations.
Item [13] - After subparagraph 2.27B(1)(c)(v)
This item inserts new subparagraph 2.27B(1)(c)(vi) into Part 2 of the Principal Regulations. New subparagraph 2.27B(1)(c)(vi) provides that regulation 2.27B applies to a person who, in addition to meeting existing requirements, is an applicant for a Skilled - Independent Regional (Provisional) (Class UX) visa.
The purpose of new subparagraph 2.27B(1)(c)(vi) is to enable the Minister to invite an applicant for a Skilled - Independent Regional (Provisional) visa to have a skills assessment in the circumstances outlined in regulation 2.27B.
Item [14] - Schedule 1, paragraph 1104B(2)(a)
This item substitutes new paragraph 1104B(2)(a) of Schedule 1 to the Principal Regulations.
The effect of new paragraph 1104B(2)(a) is that applicants for a Business Skills (Residence) (Class DF) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa will pay a reduced first instalment of the visa application charge. The first instalment of the visa application charge for this group is $165 compared to $1 000 for all other applicants for a Class DF visa.
Item [15] - Schedule 1, sub-subparagraph 1104B(2)(b)(i)(D)
This item amends sub-subparagraph 1104B(2)(b)(i)(D) of Schedule 1 to the Principal Regulations, and is consequential to the insertion of new sub-subparagraph 1104B(2)(b)(i)(E) into the Principal Regulations, by these Regulations.
Item [16] - Schedule 1, after sub-subparagraph 1104B(2)(b)(i)(D)
This item inserts new sub-subparagraph 1104B(2)(b)(i)(E) into Schedule 1 to the Principal Regulations.
The effect of new sub-subparagraph 1104B(2)(b)(i)(E) is that applicants for a Business Skills (Residence) (Class DE) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa are exempted from having to pay the $2 485 second instalment of the visa application charge. For these applicants, the second instalment of the visa application charge is nil.
Item [17] - Schedule 1, paragraph 1104B(3)(f)
This item substitutes new paragraph 1104B(3)(f) of Schedule 1 to the Principal Regulations.
New paragraph 1104B(3)(f) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State / Territory Sponsored Business Owner) visa must be the holder of a visa described in new subparagraphs 1104B(3)(f)(i), (ii) or (iii).
The purpose of new paragraph 1104B(3)(f) is to include applicants who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa or have held a Skilled -Independent Regional (Provisional) (Class UX) visa at any time in the
28 days immediately before making an application for a Business Skills (Residence) (Class DF) visa, to be eligible to be granted a Subclass 892 visa on the basis of satisfying the primary criteria.
This amendment is consequential to the introduction of the Skilled - Independent Regional (Provisional) (Class UX) visa, by these Regulations.
Item [18] - Schedule 1, after paragraph 1104B(3)(i)
This item inserts new paragraph 1104B(3)(j) into Schedule 1 to the Principal Regulations.
New paragraph 1104B(3)(j) prevents an applicant for a Business Skills (Residence) (Class DF) visa who seeks to satisfy the primary criteria for the grant of a Subclass 892 (State / Territory Sponsored Business Owner) from applying if they are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa and have not held that visa for at least 2 years before applying.
The purpose of new paragraph 1104B(3)(j) is to ensure that a person who is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa holds this visa for a minimum period of at least 2 years. The Skilled - Independent Regional (Provisional) visa is subject to a mandatory visa condition that the visa holder must live and work or study in regional Australia (the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A). This means that the holder of a Skilled - Independent Regional (Provisional) visa must abide by the attached visa condition for 2 years before being eligible to apply for a Business Skills (Residence) visa.
Item [19] - Schedule 1, subparagraph 1114A(2)(a)(ii)
This item substitutes subparagraph 1114A(2)(a)(ii) of Schedule 1 to the Principal Regulations with new subparagraphs 1114A(2)(a)(ii) and (iii).
The effect of new subparagraph 1114A(2)(a)(ii) is that applicants for an Employer Nomination (Residence) (Class BW) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa will pay a reduced first instalment of the visa application charge. The first instalment of the visa application charge for this group is $165 compared to $1 000 for all other applicants for a Class BW visa.
Item [20] - Schedule 1, after sub-subparagraph 1114A(2)(b)(i)(A)
This item inserts new sub-subparagraph 1114A(2)(b)(i)(AA) into Schedule 1 to the Principal Regulations.
The effect of new sub-subparagraph 1114A(2)(b)(i)(AA) is that applicants for an Employer Nomination (Residence) (Class BW) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa are exempted from having to pay the $5 130 second instalment of the visa application charge. For these applicants, the second instalment of the visa application charge is nil.
Item [21] - Schedule 1, after sub-subparagraph 1114A(2)(b)(ii)(A)
This item inserts new sub-subparagraph 1114A(2)(b)(ii)(AA) into Schedule 1 to the Principal Regulations.
The effect of new sub-subparagraph 1114A(2)(b)(ii)(AA) is that applicants for an Employer Nomination (Residence) (Class BW) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa are exempted from having to pay the $2 560 second instalment of the visa application charge. For these applicants, the second instalment of the visa application charge is nil.
Item [22] - Schedule 1, after paragraph 1114A(3)(b)
This item inserts new paragraph 1114A(3)(ba) into Schedule 1 to the Principal Regulations.
New paragraph 1114A(3)(ba) prevents an applicant for an Employer Nomination (Residence) (Class BW) visa from applying for a visa of that class if:
• they are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa, granted on the basis of satisfying the primary criteria; and
• the applicant has not held the Skilled - Independent Regional (Provisional) visa for at least 2 years; and
• the Skilled - Independent Regional (Provisional) visa was granted on the basis of satisfying the primary criteria; and
• they seek to satisfy the primary criteria for the grant of a Subclass 856 (Employer Nomination Scheme) or Subclass 875 (Regional Sponsored Migration Scheme) visa.
The purpose of new paragraph 1114A(3)(ba) is to ensure that a person who is described in this new paragraph holds the Skilled - Independent Regional (Provisional) visa for a minimum period of at least 2 years. The Skilled - Independent Regional (Provisional) visa is subject to the mandatory visa condition that the applicant must live and work or study in regional Australia (the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A). This means that the holder of a Skilled - Independent Regional (Provisional) visa must abide by the attached visa condition for 2 years before being eligible to apply for a Class BW visa.
Item [23] - Schedule 1, subparagraph 1128C(2)(a)(ii)
This item substitutes subparagraph 1128C(2)(a)(ii) of Schedule 1 to the Principal Regulations with new subparagraphs 1128C(2)(a)(ii) and 1128C(2)(a)(iii).
The effect of new subparagraph 1128C(2)(a)(ii) is that applicants for a Skilled - Independent (Migrant) (Class BN) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa will pay a reduced first instalment of the visa application charge. The first instalment of the visa application charge for this group is $165 compared to $1 795 for all other applicants for a Class BN visa.
Item [24] - Schedule 1, subparagraph 1128C(2)(b)(i)
This item amends subparagraph 1128C(2)(b)(i) of Schedule 1 to the Principal Regulations.
The effect of new subparagraph 1128C(2)(b)(i) is that applicants for a Skilled - Independent (Migrant) (Class BN) visa who are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa are exempted from having to pay the $2 560 second instalment of the visa application charge. For these applicants, the second instalment of the visa application charge is nil.
Item [25] - Schedule 1, after paragraph 1128C(3)(c)
This item inserts new paragraph 1128C(3)(d) into Schedule 1 to the Principal Regulations.
New paragraph 1128C(3)(d) prevents an applicant for a Skilled - Independent (Migrant) (Class BN) visa from applying for a visa of that class if:
• they are the holder of, or the last substantive visa held by them was, a Skilled - Independent Regional (Provisional) (Class UX) visa; and
• they have not held that visa for at least 2 years.
The purpose of new paragraph 1128C(3)(d) is to ensure that a person who is the holder of, or whose last substantive visa was, a Skilled - Independent Regional (Provisional) visa has held this visa for a minimum period of at least 2 years. The Skilled - Independent Regional (Provisional) visa is subject to the mandatory visa condition that the applicant must live and work or study in regional Australia (the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A). This means that the holder of a Skilled - Independent Regional (Provisional) visa must abide by the attached visa condition for 2 years before being eligible to apply for a Skilled - Independent (Migrant) (Class BN) visa.
Item [26] - Schedule 1, paragraph 1212A(3)(c)
This item amends paragraph 1212A(3)(c) of Schedule 1 to the Principal Regulations.
New paragraph 1212A(3)(c) provides that an applicant must state in his or her application for a Graduate -- Skilled (Temporary) (Class UQ) visa, an intention to make a valid application for a Skilled -- Independent Overseas Student (Class DD), Skilled -- Australian-sponsored Overseas Student (Class DE) or Skilled - Independent Regional (Provisional) (Class UX) visa.
The purpose of new paragraph 1212A(3)(c) is to include the new Skilled - Independent Regional (Provisional) (Class UX) visa, introduced by these Regulations, as an acceptable class of visa which an applicant applying for a Class UQ visa must intend to apply for, in order to make a valid application.
Item [27] - Schedule 1, after paragraph 1214C(3)(f)
This item inserts new paragraph 1214C(3)(g) into Schedule 1 to the Principal Regulations.
New paragraph 1214C(3)(g) prevents an applicant for a Partner (Temporary) (Class UK) visa from applying for a visa of that class if:
• they are the holder of, or the last substantive visa held by the applicant was a Skilled - Independent Regional (Provisional) (Class UX) visa; and
• they have not held that visa for at least 2 years.
The purpose of new paragraph 1214C(3)(g) is to ensure that a person who is the holder of, or whose last substantive visa was, a Skilled - Independent Regional (Provisional) visa has held this visa for a minimum period of at least 2 years. The Skilled - Independent Regional (Provisional) visa is subject to the mandatory visa condition that the applicant must live and work or study in regional Australia (the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A). This means that the holder of a Skilled - Independent Regional (Provisional) visa must abide by the attached visa condition for 2 years before being eligible to apply for Partner (Temporary) (Class UK) visa.
Item [28] - Schedule 1, after item 1218
This item inserts item 1218A into Schedule 1 to the Principal Regulations, relating to the new Skilled - Independent Regional (Provisional), also inserted by these Regulations.
New item 1218A outlines the requirements that must be met by a person in order to make a valid application for a Skilled - Independent Regional (Provisional) (Class UX) visa.
New subitem 1218A(1) provides that in order to make a valid application for a Skilled - Independent Regional (Provisional) (Class UX) visa, form 47SK must be used.
New subitem 1218A(2) outlines the visa application charge applicable to different groups of applicants. In particular, new paragraph 1218A(2)(a) provides that the visa application charge for applicants who hold a Subclass 495 (Skilled - Independent Regional (Provisional)) visa or have been invited by the Minister to apply for a Skilled - Independent Regional (Provisional) (Class UX) visa, need pay a reduced visa application charge.
New subitem 1218A(3):
• outlines where to make an application for a Class UX visa, and the requirements to be met by a person who is a member of the family unit of an applicant for a Class UX visa; and
• requires that an applicant must meet the requirements of new subitem 1218A(4), (5) or (6).
New subitem 1218A(4) provides that an applicant for a Class UX visa who is already the holder of a class UX visa granted on the basis of satisfying the primary criteria must, in order to satisfy this subitem, have not held another Class UX visa granted on the same basis. An effect of new subitem 1218A(4) is that an applicant who can satisfy this provision may be in Australia when the visa is granted (see new clause 495.411, inserted by these Regulations).
New subitem 1218A(5) provides, in addition to new subitem 1218A(4), other limited circumstances in which an applicant may make an application for a Class UX visa, and be eligible for the grant of this class of visa whilst in Australia.
New subitem 1218A(6) clarifies that if an applicant does not meet the requirements of new subitem 1218A(4) or (5), then they must meet the requirements of new subitem 1218A(6), relating to age, skills assessment, police checks and sponsorship. New subitem 1218A(6) is designed for the majority of applicants. An effect of this provision is that such applicants must be outside Australia when the visa is granted (see new clause 495.412, inserted by these Regulations).
New subitem 1218A(7) provides that the only visa subclass in the Skilled - Independent Regional (Provisional) (Class UX) visa class is Subclass 495 (Skilled - Independent Regional (Provisional)).
Item [29] - Schedule 2, after clause 136.213
This item inserts new clause 136.214 into Schedule 2 to the Principal Regulations.
New clause 136.214 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject.
The purpose of this amendment is to prevent the grant to a primary applicant (that is, a person aiming to meet the primary criteria) of a Subclass 136 (Skilled - Independent) visa where the applicant has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) (Class UX) visa.
Item [30] - Schedule 2, after clause 136.311
This item inserts new clause 136.312 into Schedule 2 to the Principal Regulations.
New clause 136.312 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject.
The purpose of this amendment is to prevent the grant to a secondary applicant (that is, a person aiming to meet the secondary criteria) of a Subclass 136 (Skilled - Independent) visa where the applicant has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) (Class UX) visa.
Item [31] - Schedule 2, clause 137.111, note 2
This item substitutes note 2 after clause 137.111 of Schedule 2 to the Principal Regulations with new notes 2 and 3.
The purpose of new notes 2 and 3 is to provide a cross-reference to the relevant part of the Principal Regulations which defines `member of the family unit' and `vocational English'.
Item [32] - Schedule 2, clause 137.211
This item substitutes new clause 137.211 of Schedule 2 to the Principal Regulations.
The purpose of new clause 137.211 is to limit the criterion that an applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa must be under 45 years of age, to those applicants who satisfy paragraph 137.211(a) or (b), rather than it apply to all applicants who seek to satisfy the primary criteria for the grant of a Subclass 137 visa.
Item [33] - Schedule 2, clause 137.213
This item substitutes new clause 137.213 of Schedule 2 to the Principal Regulations.
The purpose of new clause 137.213 is to limit the criterion that an applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa must have had their skills assessed by the relevant assessing authority as suitable for their nominated skilled occupation, to those applicants who satisfy paragraph 137.213(a) or (b), rather than it apply to all applicants who seek to satisfy the secondary criteria for the grant of a Subclass 137 visa.
Item [34] - Schedule 2, subclause 137.214(1)
This item substitutes new subclause 137.214(1) of Schedule 2 to the Principal Regulations.
The purpose of new subclause 137.214(1) is to limit the group of applicants for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa that are required to satisfy this subclause relating to recent work experience, to those applicants who satisfy paragraph 137.214(1)(a) or (b), rather than have it apply to all applicants who seek to satisfy the primary criteria for the grant of a Subclass 137 visa.
Item [35] - Schedule 2, after clause 137.214
This item inserts new clauses 137.215 and 137.216 into Schedule 2 to the Principal Regulations.
New clause 137.215 provides that if the applicant is the holder of, or the last substantive visa held by the applicant since last entering Australia was, a Skilled - Independent Regional (Provisional) visa, the applicant must:
• for at least 2 years (cumulatively) in the previous 3 years before applying, have lived in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A (in force when the visa was granted); and
• for at least 1 year (cumulatively) in the previous 3 years before applying, have worked in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A (in force when the visa was granted).
The purpose of the amendment is to prevent the grant of a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa to an applicant who has not lived and worked for the requisite period of time in a regional or low population growth metropolitan area of Australia (as specified in the relevant Gazette Notice) whilst the holder of a Skilled - Independent Regional (Provisional) visa.
New clause 137.216 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa to an applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [36] - Schedule 2, clause 137.221, including the note
This item substitutes new clause 137.221 of Schedule 2 to the Principal Regulations and the note immediately following.
The purpose of new clause 137.221 is to limit the group of applicants for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa that are required to satisfy this clause relating to an applicant's points score, to those applicants who satisfy paragraph 137.221(a) or (b), rather than have it apply to all applicants who seek to satisfy the primary criteria for the grant of a Subclass 137 visa.
The new note immediately after new clause 137.221 is an aid that explains the operation of the `points system', `pool marks' and `pass marks'.
Item [37] - Schedule 2, subclause 137.221A(1)
This item substitutes new subclause 137.221A(1) of Schedule 2 to the Principal Regulations.
The purpose of new subclause 137.221A(1) is to limit the group of applicants for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa that are required to satisfy this subclause relating to recent work experience, to those applicants who satisfy paragraph 137.221A(1)(a) or (b), rather than have it apply to all applicants who seek to satisfy the primary criteria for the grant of a Subclass 137 visa.
Item [38] - Schedule 2, clause 137.222
This item substitutes new clause 137.222 of Schedule 2 to the Principal Regulations.
The purpose of new clause 137.222 is to limit the group of applicants for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa that are required to satisfy the criterion that the applicant has vocational English, to those applicants who satisfy paragraph 137.222(a) or (b), rather than have it apply to all applicants who seek to satisfy the primary criteria for the grant of a Subclass 137 visa.
Item [39] - Schedule 2, clause 137.225
This item substitutes clause 137.225 of Schedule 2 to the Principal Regulations with new clause 137.225.
New paragraph 137.225(a) provides that if the applicant was the holder of a Skilled - Independent Regional (Provisional) visa at the time of application, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010.
New paragraph 137.225 (b) provides that in any other case, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new clause 137.225 is to exempt an applicant who is the holder of a Skilled - Independent Regional (Provisional) visa from having to satisfy public interest criterion 4005. They are instead required to satisfy public interest criterion 4007, in addition to the other public interest criteria that must be met by all applicants seeking to satisfy the secondary criteria for the grant of a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa.
Item [40] - Schedule 2, paragraph 137.228(1)(a)
This item substitutes paragraph 137.228(1)(a) of Schedule 2 to the Principal Regulations with new paragraph 137.228(1)(a).
New paragraph 137.228(1)(a) provides that, for each member of the family unit of the applicant who is an applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa, that family unit member is a person who either:
• if the member was, at the time of application, the holder of a Skilled - Independent Regional (Provisional) visa - satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
• in any other case - satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new paragraph 137.228(1)(a) is to exempt an applicant who is the holder of a Skilled - Independent Regional (Provisional) visa from having to satisfy public interest criterion 4005. They are instead required to satisfy public interest criterion 4007.
Item [41] - Schedule 2, paragraph 137.228(2)(b)
This item amends paragraph 137.228(2)(b) of Schedule 2 to the Principal Regulations.
New paragraph 137.228(2)(b) provides that if, at the time of application, the member of the family unit of the applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa was not the holder of a Skilled - Independent Regional (Provisional) visa, and is not themselves an applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa, they must satisfy public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
The purpose of new paragraph 137.228(2)(b) is to exempt an applicant who is the holder of a Skilled - Independent Regional (Provisional) visa from having to satisfy public interest criterion 4005. They are instead required to satisfy public interest criterion 4007, in accordance with new paragraph 137.228(2)(c) of the Principal Regulations, inserted by these Regulations.
Item [42] - Schedule 2, paragraph 137.228(2)(b)
This item amends paragraph 137.228(2)(b) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new paragraph 137.228(2)(c) into the Principal Regulations, by these Regulations.
Item [43] - Schedule 2, after paragraph 137.228(2)(b)
This item inserts new paragraph 137.228(2)(c) into Schedule 2 to the Principal Regulations.
New paragraph 137.228(2)(c) provides that if:
• at the time of application, the member of the family unit of the applicant was the holder of a Skilled - Independent Regional (Provisional) visa; and
• the member is not an applicant for a Subclass 137 (Skilled - State/Territory-Nominated Independent) visa
they must satisfy public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
Item [44] - Schedule 2, after clause 137.311
This item inserts new clause 137.312 into Schedule 2 to the Principal Regulations.
New clause 137.312 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 137 (Skilled - State/Territory - Nominated Independent) visa to an applicant who has not complied with the conditions of his or her (Skilled - Independent Regional (Provisional)) visa.
Item [45] - Schedule 2, clause 137.322
This item substitutes new clause 137.322 of Schedule 2 to the Principal Regulations.
New paragraph 137.322(a) provides that if the applicant was the holder of a Skilled - Independent Regional (Provisional) visa at the time of application, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010.
New paragraph 857.322(b) provides that in any other case, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new clause 137.322 is to exempt an applicant for of a Subclass 137 (Skilled - State/Territory - Nominated Independent) visa who is the holder of a Skilled - Independent Regional (Provisional) visa from having to satisfy public interest criterion 4005. They are instead required to satisfy public interest criterion 4007, in addition to the other public interest criteria that must be met by all applicant seeking to satisfy the secondary criteria for the grant of a Subclass 137 visa.
Item [46] - Schedule 2, clause 137.411
This item substitutes clause 137.411 of Schedule 2 to the Principal Regulations with new clauses 137.411 and 137.412.
New clause 137.411 provides that if the applicant:
• was the holder of a Skilled - Independent Regional (Provisional) visa at the time of application; or
• is a member of the family unit of a person who was the holder of a Skilled - Independent Regional (Provisional) visa by reason of satisfying the primary criteria for the grant of the visa at the time of application;
the applicant may be in or outside Australia, but not in immigration clearance when the visa is granted.
New clause 137.412 provides that, in any other case, the applicant must be outside Australia at the time of grant of the visa.
Item [47] - Schedule 2, after Part 470
This item inserts new part 495 into Schedule 2 to the Principal Regulations, setting out the criteria that an applicant for a Skilled --Independent Regional (Provisional) (Class UX) visa must meet to be eligible for the grant of a Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
Division 495.1 - Interpretation
New clause 495.111 sets out the defined terms relevant to new visa Subclass 495 (Skilled - Independent Regional (Provisional)). The term completed includes having met the requirements for award of a degree, diploma or trade qualification. Degree, diploma and trade qualification have the meanings given in subregulation 2.26A(6) of the Principal Regulations. Employed has the meaning given in subregulation 2.26A(7), whilst vocational English has the meaning given in regulation 1.15B of the Principal Regulations.
Division 495.2 - Primary Criteria
New Division 495.2 specifies the primary criteria that must be satisfied by an applicant seeking the grant of a new Subclass 495 visa. The primary criteria must be satisfied by at least one member of a family unit. Other members of the family unit need only satisfy the secondary criteria.
Subdivision 495.21 - Criteria to be satisfied at time of application
New subdivision 495.21 sets out the primary criteria to be satisfied at the time of application.
New subclause 495.211(1) provides that, subject to subclause 495.211(2), depending on the amount of points specified by Gazette Notice for the skilled occupation nominated by the applicant in their application, an applicant must have been employed in a skilled occupation for a period of time as specified in paragraphs 495.211(a) and (b).
New subclause 495.211(2) provides that subclause 495.211(1) does not apply to certain applicants who have, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification, subject to other requirements.
New clause 495.212 provides that, in determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period of time in Australia, the period must not be counted unless the applicant held a visa permitting him or her to work during that period and complied with the conditions to which that visa was subject.
Subdivision 495.22 - Criteria to be satisfied at time of decision
New subdivision 459.22 specifies the primary criteria that must be satisfied at the time of decision by an applicant for a new Subclass 495 visa.
New clause 495.221 provides that, if regulation 2.27B applies, the applicant provides a skills assessment of his or her skills (as mentioned in subregulation 2.27B(4)), and the skills have been assessed by the relevant assessing authority as suitable for that occupation.
Regulation 2.27B of Part 2 of the Principal Regulations, as amended by these Regulations, enables the Minister to invite an applicant for a Skilled - Independent Regional (Provisional) (Class UX) visa who has qualifications and experience in a skilled occupation that has not been assessed by the relevant assessing authority, to have his or her skills assessed for that occupation and make this skilled occupation the nominated qualification for the purpose of the application.
New clause 495.222 requires the applicant to have a qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act.
The new note after clause 495.222 explains that Subdivision B of Division 3 of Part 2 of the Act provides, in sections 92 to 96, for the application of a points system, under which applicants for certain visas are given an assessed score based on the prescribed number of points for particular attributes. This score is then assessed against the relevant pool mark and pass mark. Division 2.2 and regulation 2.26A of the Principal Regulations and Schedule 6A to the Principal Regulations outline the prescribed points and the manner of their allocation. Pool marks and pass marks at set from time to time by the Minister and notified in the Gazette.
New clause 495.223 requires the applicant to have vocational English. Vocational English is defined in regulation 1.15B of the Principal Regulations.
New paragraph 495.224(a) requires that no evidence has become available since the time of application that the information given or used as part of the skills assessment mentioned in paragraph 1218A(5)(i) or 1218A(6)(b) of Schedule 1 to the Principal Regulations (inserted by these Regulations) is false or misleading.
New paragraph 495.224(b) requires that no evidence has become available since the time of application that the information given or used to satisfy new clause 495.211 of Schedule 2 (concerning education qualifications) is false or misleading in a material particular.
New clause 495.225 specifies the public interest criteria that an applicant seeking to satisfy the primary criteria must satisfy.
New clause 495.226 specifies the special return criteria that the applicant seeking to satisfy the primary criteria must satisfy if he or she has previously been in Australia.
New subclause 495.227(1) provides that the applicant must be sponsored by a State or Territory government agency, the Minister must have accepted that sponsorship and the sponsorship must still be in force.
New subclause 495.227(2) provides how a sponsorship under new subclause 495.227(1) must be made - on form 1244 and lodged at the office of Immigration where the application was made.
New clause 495.228 provides that if an assurance of support has been requested by the Minister in relation to an applicant, the Minister is satisfied that the assurance has been accepted by the Secretary of the Department of Family and Community Services.
New clause 495.228 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 listed in Schedule 2 to the Principal Regulations.
New paragraph 495.229(a) specifies the public interest criteria that each member of the family unit of the applicant, who is also themselves an applicant for a Subclass 495 visa, must satisfy.
New paragraph 495.229(b) specifies the special return criteria that each member of the family unit of the applicant, who is also themselves an applicant for a Subclass 495 visa, must satisfy if he or she has previously been in Australia.
New clause 495.230 specifies the public interest criteria that a person who is:
• a member of the family unit of the applicant;
• has not turned 18; and
• has made a combined application with the applicant
must satisfy.
New clause 495.231 provides that grant of the Subclass 495 visa must not result in either:
• the number of Subclass 495 visas granted in a financial year exceeding the maximum number as prescribed in a Gazette Notice; or
• the number of visas of particular classes granted in a financial year exceeding the maximum number of visas of those classes, as prescribed in a Gazette Notice, that may be granted in that financial year.
Division 495.3 - Secondary criteria
New Division 495.3 specifies the secondary criteria that must be satisfied by an applicant seeking the grant of a new Subclass 495 visa. The secondary criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria (contained in Division 495.2).
Subdivision 495.31 - Criteria to be satisfied at time of application
New clause 495.311 provides that at time of application, the applicant must be a member of the family unit of a person who satisfies the primary criteria in Subdivision 495.21 (criteria to be satisfied at time of application).
Subdivision 495.32 - Criteria to be satisfied at time of decision
New clause 495.321 provides that the applicant must, at time of decision, continue to be a member of the family unit of person who satisfied the primary criteria and is the holder of a Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
New clause 495.322 provides that an applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005 and 4010.
New clause 495.323 provides that, if an applicant has previously been in Australia, the applicant must satisfy special return criteria 5001, 5002 and 5010.
New clause 495.324 provides that, if the Minister has requested an assurance of support for the person who satisfies the primary criteria, the Minister must be satisfied that the applicant is included in the assurance of support given for that person, and that that assurance of support has been accepted by the Secretary of the Department of Family and Community Services, or that an assurance of supported in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.
New clause 495.324 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 listed in Schedule 2 to the Principal Regulations.
New clause 495.325 provides that if an applicant has not turned 18, public interest criteria 4017 and 4018 are to be satisfied in relation to the applicant.
Division 495.4 - Circumstances applicable to grant
New clause 495.411 provides that if the applicant:
• satisfies subclause (4) or (5) of item 1218A of Schedule 1 to the Principal Regulations, or
• is a member of the family unit of a person who satisfies subclause (4) or (5) of item 1218A of Schedule 1 and makes a combined application with that person
the applicant may be in Australia (but not in immigration clearance) or outside Australia when the visa is granted.
New clause 495.412 provides that in any other case, the applicant must be outside Australia when the visa is granted.
Division 495.5 - When visa is in effect
New clause 495.511 provides that the new Subclass 495 visa is a temporary visa, allowing the holder to travel to, enter and remain in Australia until a date specified by the Minister.
Division 495.6 - Conditions
New clause 495.611 provides that, if the applicant is outside Australia at the time of grant, first entry into Australia must be made before a date specified by the Minister for the purpose.
New clause 495.612 provides that, if the applicant satisfies the secondary criteria for a Subclass 495 visa, either or both of conditions 8502 and 8514 may be imposed on the visa. Condition 8502 provides that the holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. Condition 8514 provides that, during the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.
New clauses 495.613 and 495.614 provide respectively, that condition 8515 may be imposed on the visa, and condition 8539 must be imposed on the visa. Condition 8515 provides that the holder of the visa must not marry before entering Australia. New condition 8539 is inserted by these Regulations, and provides that, while the holder of the visa is in Australia, the holder must not live, study or work outside a part of Australia, the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A which was in force when the condition was imposed.
Division 495.7 - Way of Giving Evidence
New clause 495.711 provides that a visa label affixed to a valid passport evidences the grant of a Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
Item [48] - Schedule 2, clauses 497.223 and 497.224
This item amends clauses 497.223 and 497.224 of Schedule 2 to the Principal Regulations.
New clause 497.223 provides that the Minister must be satisfied that the expressed intention of an applicant for a Subclass 497 (Graduate - Skilled) visa to make a valid application for a Skilled - Independent Overseas Student (Class DD), Skilled Australian - sponsored Overseas Student (Class DE) or Skilled - Independent Regional (Provisional) (Class UX) visa is genuine.
New clause 497.224 provides that there is no evidence that indicates that an applicant for a Subclass 497 (Graduate - Skilled) visa will not be able to make a valid application for a Skilled - Independent Overseas Student (Class DD), Skilled Australian - sponsored Overseas Student (Class DE) or Skilled - Independent Regional (Provisional) (Class UX) visa.
The purpose of new clauses 497.223 and 497.224 is to ensure that applicants seeking to satisfy the primary criteria for the grant of a Subclass 497 (Graduate - Skilled) visa will only do so if they have a genuine intention (and there is no evidence to the contrary) that they intend to make a valid application for a:
• Skilled - Independent Overseas Student (Class DD) visa; or
• Skilled Australian - sponsored Overseas Student (Class DE) visa; or
• Skilled - Independent Regional (Provisional) (Class UX) visa.
Item [49] - Schedule 2, after clause 820.211
New clause 820.212 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 820 (Spouse) visa to a primary applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [50] - Schedule 2, after clause 820.312
New clause 820.313 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 820 (Spouse) visa to a secondary applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [51] - Schedule 2, after clause 826.212
New clause 826.213 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 826 (Interdependency) visa to a primary applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [52] - Schedule 2, after clause 826.312
New clause 826.313 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 826 (Interdependency) visa to a secondary applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [53] - Schedule 2, subparagraph 857.212(4)(a)(viii)
This item amends subparagraph 857.212(4)(a)(viii) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new subparagraph 857.212(4)(a)(ix) into the Principal Regulations, by these Regulations.
Item [54] - Schedule 2, after subparagraph 857.212(4)(a)(viii)
This item inserts new subparagraph 857.212(4)(a)(ix) into Schedule 2 to the Principal Regulations.
New subparagraph 857.212(4)(a)(ix) provides that a Skilled - Independent Regional (Provisional) (Class UX) visa is a qualifying visa for the purposes of subclause 857.212(3).
The purpose of this amendment is to enable an applicant who seeks to satisfy the primary criteria for the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa to do so if they are the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application.
Item [55] - Schedule 2, after clause 857.214
This item inserts new clauses 857.215 and 857.216 into Schedule 2 to the Principal Regulations.
New clause 857.215 provides that if the applicant is the holder of, or the last substantive visa held by the applicant since last entering Australia was, a Skilled - Independent Regional (Provisional) (Class UX) visa, the applicant must:
• for at least 2 years (cumulatively) in the previous 3 years, have lived in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A in force when the visa was granted; and
• for at least 1 year (cumulatively) in the previous 3 years, have worked in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A in force when the visa was granted.
The purpose of the amendment is to prevent the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa to an applicant who has not lived and worked for the requisite period of time in a regional or low population growth metropolitan area of Australia (as specified by postcode in the relevant Gazette Notice) whilst the holder of a Skilled - Independent Regional (Provisional) visa.
New clause 857.216 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa to an applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [56] - Schedule 2, clause 857.223
This item substitutes new clause 857.223 of Schedule 2 to the Principal Regulations.
New clause 857.223 provides that the applicant satisfies:
• if the applicant was at the time of application the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa - public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
• in any other case - public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new clause 857.223 is to exempt an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa who is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa from having to satisfy public interest criterion 4005. They are instead required to satisfy public interest criterion 4007 in addition to the other public interest criteria that must be met by all applicants seeking to satisfy the primary criteria for the grant of a Subclass 857 visa.
Item [57] - Schedule 2, subclause 857.225(1)
This item substitutes subclause 857.225(1) of Schedule 2 to the Principal Regulations with new subclause 857.225(1).
New subclause 857.225(1) requires that each member of the family unit of the applicant who is an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa:
• if the member was at the time of application the holder of a Skilled - Independent Regional (Provisional) visa - is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
• in any other case - satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new subclause 857.225(1) is to exempt an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa who is the holder of a Skilled - Independent Regional (Provisional) visa from satisfying public interest criterion 4005. They are instead required to satisfy public interest criterion 4007 in addition to the other public interest criteria that must be met by all applicants seeking to satisfy the primary criteria for the grant of a Subclass 857 visa.
Item [58] - Schedule 2, paragraph 857.225(2)(b)
This item substitutes new paragraph 857.225(2)(b) of Schedule 2 to the Principal Regulations.
New paragraph 857.225(2)(b) requires that each member of the family unit of the applicant who is not an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa is a person who either:
• if the member was at the time of application the holder of a Skilled - Independent Regional (Provisional) visa - satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion; or
• in any other case - satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
The purpose of new paragraph 857.225(2)(b) is to exempt an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa who is the holder of a Skilled - Independent Regional (Provisional) visa from satisfying public interest criterion 4005. They are instead required to satisfy public interest criterion 4007 unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
Item [59] - Schedule 2, after clause 857.313
This item inserts new clause 857.314 into Schedule 2 of the Principal Regulations.
New clause 857.314 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa to an applicant who has not complied with the conditions of his or her Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
Item [60] - Schedule 2, clause 857.322
This item substitutes new clause 857.322 into Schedule 2 to the Principal Regulations.
New paragraph 857.322(a) provides that if an applicant for a for a Subclass 857 (Regional Sponsored Migration Scheme) visa was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010.
New paragraph 857.322(b) provides that, in any other case, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
The purpose of new clause 857.322 is to exempt an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa who is the holder of a Skilled - Independent Regional (Provisional) visa from satisfying public interest criterion 4005. They are instead required to satisfy public interest criterion 4007 in addition to the other public interest criteria that must be met by all applicants seeking to satisfy the secondary criteria for the grant of a Subclass 857 visa.
Item [61] - Schedule 2, clause 857.411
This item substitutes clause 857.411 of Schedule 2 to the Principal Regulations with new clauses 857.411 and 857.412.
New clause 857.411 provides that if the applicant:
• was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application; or
• is a member of the family unit of a person who was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa by reason of satisfying the primary criteria for the grant of the visa at the time of application
the applicant may be in or outside Australia, but not in immigration clearance when the visa is granted.
The purpose of new clause 857.411 is to enable an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa who satisfies this clause to be in Australia (but not in immigration clearance) or outside Australia, when the visa is granted. This provides greater flexibility to such an applicant in terms of their physical location at the time the visa is granted.
New clause 857.412 provides that in any other case, the applicant must be in Australia, but not in immigration clearance, when the visa is granted.
Item [62] - Schedule 2, clause 892.215
This item amends clause 892.215 of Schedule 2 to the Principal Regulations.
New clause 892.215 provides that if an applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa is not the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa, the applicant has been in Australia as the holder of 1 of the visas mentioned in paragraph 1104B(3)(f) of Schedule 1 for a total of at least 1 year in the 2 years immediately before the application is made.
The purpose of this amendment is to exempt the holder of a Skilled - Independent Regional (Provisional) visa from having to satisfy clause 892.215.
Item [63] - Schedule 2, after clause 892.215
This item inserts new clauses 892.216 and 892.217 in to Schedule 2 of the Principal Regulations.
New clause 892.216 provides that if the applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa is the holder of, or the last substantive visa held by the applicant since last entering Australia was, a Skilled - Independent Regional (Provisional) visa, the applicant must:
• for at least 2 years (cumulatively) in the previous 3 years, have lived in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A in force when the visa was granted; and
• for at least 1 year (cumulatively) in the previous 3 years, have worked in a part of Australia specified in the Gazette Notice for item 6A1001 of Schedule 6A in force when the visa was granted.
The purpose of the amendment is to prevent the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa to an applicant who has not lived and worked for the requisite period of time in a regional or low population growth metropolitan area of Australia (as specified by postcode in the relevant Gazette Notice) whilst the holder of a Skilled - Independent Regional (Provisional) visa.
New clause 892.217 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa to an applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [64] - Schedule 2, paragraph 892.224(3)(b)
This item amends paragraph 892.224(3)(b) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new paragraph 892.224(3)(c) into the Principal Regulations, by these Regulations.
Item [65] - Schedule 2, after paragraph 892.224(3)(b)
This item inserts new paragraph 892.224(3)(c) in Schedule 2 to the Principal Regulations. New paragraph 892.224(4)(c) provides that each member of the family unit of an applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa who was not the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application must satisfy public interest criterion 4005, concerning the health of the family unit member.
Item [66] - Schedule 2, paragraph 892.224(4)(b)
This item amends paragraph 892.224(4)(b) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new paragraph 892.224(4)(c) into the Principal Regulations, by these Regulations.
Item [67] - Schedule 2, after paragraph 892.224(4)(b)
This item inserts new paragraph 892.224(4)(c) in Schedule 2 to the Principal Regulations. New paragraph 892.224(4)(c) provides that each member of the family unit of an applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa who was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application must satisfy public interest criterion 4007, concerning the health of the family unit member.
Item [68] - Schedule 2, after clause 892.311
This item inserts new clause 892.312 in to Schedule 2 to the Principal Regulations. New clause 892.312 provides that if:
• the applicant is the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa; or
• the last substantive visa held by the applicant since last entering Australia was a Skilled - Independent Regional (Provisional) (Class UX) visa
the applicant must have complied with the conditions to which that visa is or was subject to.
The purpose of this amendment is to prevent the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa to an applicant who has not complied with the conditions of his or her Skilled - Independent Regional (Provisional) visa.
Item [69] - Schedule 2, paragraph 892.322(2)(b)
This item amends paragraph 892.322(2)(b) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new paragraph 892.322(2)(c) into the Principal Regulations, by these Regulations.
Item [70] - Schedule 2, after paragraph 892.322(2)(b)
This item inserts new paragraph 892.322(2)(c) in Schedule 2 to the Principal Regulations. New paragraph 892.322(2)(c) provides that, if a secondary applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa was not the holder of a Skilled - Independent Regional (Provisional) visa at the time of application, the applicant must satisfy public interest criterion 4005, concerning the health of the applicant.
Item [71] - Schedule 2, paragraph 892.322(3)(b)
This item amends paragraph 892.322(3)(b) of Schedule 2 to the Principal Regulations, and is consequential to the insertion of new paragraph 892.322(3)(c) into the Principal Regulations, by these Regulations.
Item [72] - Schedule 2, after paragraph 892.322(3)(b)
This item inserts new paragraph 892.322(3)(c) in Schedule 2 to the Principal Regulations. New paragraph 892.322(3)(c) provides that, if a secondary applicant for a Subclass 892 (State/Territory Sponsored Business Owner) visa was the holder of a Skilled - Independent Regional (Provisional) visa at the time of application, the applicant must satisfy public interest criterion 4007, concerning the health of the applicant.
Item [73] - Schedule 2, clause 892.411, including the note
This item substitutes clause 892.411 of Schedule 2 to the Principal Regulations with new clauses 892.411 and 892.412.
New clause 892.411 provides that if the applicant:
• was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa at the time of application; or
• is a member of the family unit of a person who was the holder of a Skilled - Independent Regional (Provisional) (Class UX) visa by reason of satisfying the primary criteria for the grant of the visa at the time of application
the applicant may be in or outside Australia, but not in immigration clearance when the visa is granted.
New clause 892.412 provides for circumstances in which new clause 892.411 does not apply, and outlines different requirements depending on whether an applicant satisfies the primary or secondary criteria for the grant of the Subclass 892 (State / Territory Sponsored Business Owner) visa, such that:
• under new paragraph 892.412(a), if the applicant satisfies the primary criteria, the applicant must be inside Australia, but not in immigration clearance, when the visa is granted; or
• under new paragraph 892.412(b), if the applicant satisfies the secondary criteria, the applicant may be inside or outside Australia, but not in immigration clearance, when the visa is granted.
Item [74] - Schedule 6A, item 6A71, column 3
This item amends column 3 of item 6A71 of Part 7 of Schedule 6A to the Principal Regulations, relating to the number of points awarded in relation to skills targeting qualifications. New item 6A71 increases the number of points from 15 to 20 points allocated to an applicant who:
• has nominated a migration occupation in demand in his or her application; and
• has an offer of full-time employment in that occupation, or a closely related skilled occupation, in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made.
Under the Principal Regulations, `migration occupation in demand' means a skilled occupation that is specified by Gazette Notice as a migration occupation in demand.
Sections 92-96 of the Act provide for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. This amendment is consequential to the increase in the pass and pool marks for the general points test, set by the Minister and notified in the Gazette.
The purpose of the amendment is to ensure that an applicant who satisfies the criterion in new clause 6A71 is not disadvantaged as a result of the increase of the pool and pass marks for the general points test.
Item [75] - Schedule 6A, item 6A72, column 3
This item amends column 3 of item 6A72 of Part 7 of Schedule 6A to the Principal Regulations. New item 6A72 increases the number of points allocated to an applicant who has nominated a migration occupation in demand in his or her application, from 10 to 15 points.
Under the Principal Regulations, `migration occupation in demand' means a skilled occupation that is specified by Gazette Notice as a migration occupation in demand.
Sections 92-96 of the Act provide for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. This amendment is consequential to the increase in the pass and pool marks for the general points test, set by the Minister and notified in the Gazette.
The purpose of the amendment is to ensure that an applicant who has nominated a migration occupation in demand in his or her application is not disadvantaged as a result of the increase of the pool and pass marks for the general points test.
Item [76] - Schedule 8, after clause 8538
This item inserts new clause 8539 in to Schedule 8 to the Principal Regulations. New clause 8539 (visa condition 8539) provides that, while the holder of the visa is in Australia, the holder must not live, study or work outside a part of Australia, the postcode of which is specified in the Gazette Notice for item 6A1001 of Schedule 6A in force at the time when the visa condition was imposed.
The purpose of new visa condition 8539, is to restrict the holder of a visa with this condition attached from living, studying or working outside a regional or low population growth metropolitan area (as specified by postcode in the relevant Gazette Notice) whilst the holder of that visa.
Under new clause 495.614, inserted by these Regulations, it is mandatory that condition 8539 be attached to the grant of a Subclass 495 (Skilled - Independent Regional (Provisional)) visa.
Schedule 2 - Amendments relating to professional development sponsorship
Item [1] - Regulation 1.03, definition of approved professional development sponsor
This item substitutes a new definition of approved professional development sponsor in regulation 1.03 of Part 1 of the Principal Regulations.
This amendment is consequential to the opting in, by these Regulations, of the Professional Development visa into the Sponsorship framework established by the Migration Legislation Amendment (Sponsorship Measures) Act 2003.
Item [2] - Division 1.4C
Division 1.4C - Sponsorship: professional development
This item substitutes new Division 1.4C of Part 1 to the Principal Regulations. New Division 1.4C prescribes matters relating to sponsorship by professional development sponsors, such as:
• how to apply for approval as an approved professional development sponsor;
• the criteria for approval as an approved professional development sponsor;
• the terms of approval as an approved professional development sponsor;
• sponsorship undertakings that an approved professional development sponsor must make;
• action to be taken (barring or cancelling) against an approved professional development sponsor where an undertaking has been breached or in other circumstances;
• waiving a bar; and
• the personal information that can be disclosed about the holder or former holder of a sponsored Subclass 470 (Professional Development) visa, and the circumstances in which Immigration and the professional development sponsor or former professional development sponsor can release this information.
New Division 1.4C is made under Division 3A of Part 2 of the Act.
Subdivision 1.4C.1 - Introductory
New subdivision 1.4C.1 consists of new regulations 1.20LA and 1.20M of Part 1 of the Principal Regulations, as inserted by these Regulations.
Regulation 1.20LA - Application of Division 3A of Part 2 of the Act
New regulation 1.20LA of Part 1 of the Principal Regulations provides that, for section 140A of the Act, Division 3A of Part 2 of the Act applies to a Subclass 470 (Professional Development) visa.
Section 140A of the Act provides that Division 3A of the Act only applies to visas of a prescribed kind. Division 3A establishes a new sponsorship regime for temporary residence visas that prescribes a comprehensive and transparent framework, which enables the regulations to prescribe requirements relating to sponsorship of visa applicants.
The Subclass 470 (Professional Development) visa is a temporary residence visa intended for groups of professionals, managers and government officials from overseas who are seeking to enhance their professional and managerial skills by taking part in tailored development programs designed by Australian sponsoring organisations.
The purpose of new regulation 1.20LA is to ensure that a Subclass 470 (Professional Development) visa is covered by the operation of Division 3A of the Act.
Regulation 1.20M - Definitions
New regulation 1.20M provides the definitions of a number of commonly used terms in Division 1.4C of Part 1 of the Principal Regulations. The following terms are defined:
• employed;
• organisation;
• overseas agreement;
• overseas employer; and
• overseas participant.
The new definition of `overseas employer' also includes multilateral agencies.
An `overseas participant' is a person who either holds a Subclass 470 (Professional Development) visa or is a person who is in Australia, does not hold a substantive visa and whose last substantive visa was a Subclass 470 (Professional Development) visa. Thus, a person ceases to be an overseas participant when his or her Subclass 470 (Professional Development) visa ceases and they are either no longer in Australia, or they are in Australia as the holder of another substantive visa (as defined in subsection 5(1) of the Act).
Subdivision 1.4C.2 - Becoming an approved professional development sponsor
New subdivision 1.4C.2 consists of new regulations 1.20N, 1.20NA, 1.20O, 1.20P, 1.20PA and 1.20PB of Part 1 of the Principal Regulations, as inserted by these Regulations.
Regulation 1.20N - Process for making application to become an approved professional development sponsor
Subsection 140F(1) of the Act provides that the regulations may establish a process for the Minister to approve a person as a sponsor. New regulation 1.20N is made in accordance with subsection 140F(1).
New regulation 1.20N provides how an organisation can apply to the Minister for approval as an approved professional development sponsor. The application by the organisation must be made on form 1226 and be accompanied by a fee of $1000. The application must be made by either posting, having the application delivered by courier service or by faxing the application. In all three cases, the relevant address for the chosen method of application is specified in a Gazette Notice.
The purpose of new regulation 1.20N is to establish a simple process for making an application for approval as a professional development sponsor.
The purpose of the note after regulation 1.20N is to clarify that a sponsor who is barred from making future applications for approval as an approved professional development sponsor under paragraph 140L(e) or (f) of the Act is prevented from meeting the requirements of regulation 1.20N.
Regulation 1.20NA - Approving an application to become an approved professional development sponsor
Section 140E of the Act provides that the regulations may prescribe criteria to be met for an applicant to be approved as a professional development sponsor. New regulation 1.20NA is made in accordance with section 140E.
The effect of new regulation 1.20NA is that if an organisation which has applied for approval as an approved professional development sponsor meets the requirements of new regulation 1.20NA, then the Minister must approve the organisation as an approved professional development sponsor.
Regulation 1.20O - Terms of approval as approved professional development sponsor
Section 140G of the Act provides that a sponsorship approval may be on specified terms, and if terms are to be specified, they must be specified in the approval, and must be of a kind prescribed in the regulations. New regulation 1.20O is made in accordance with section 140G.
Under new regulation 1.20O, the terms of approval as a professional development sponsor involve:
• the extent of the approval as an approved professional development sponsor (relating to the program, overseas agreement (or agreements) and overseas employer (or overseas employers) specified in the application for approval); and
• the length of period that an organisation will be an approved professional development sponsor.
Regulation 1.20P - Sponsorship undertakings
Section 140H of the Act provides that the regulations may prescribe undertakings to be made by an applicant for approval as a sponsor. New regulation 1.20P is made in accordance with section 140H.
New regulation 1.20P outlines the undertakings that an applicant for approval as an approved professional development sponsor must make. By making these undertakings, an applicant for approval as an approved professional development sponsor is agreeing to:
• adhere to the undertakings; and
• be liable to the sanctions provided in regulation 1.20Q of these Regulations where an undertaking is breached.
In addition to existing sponsor undertakings that must be made by applicants for approval as a professional development sponsor (outlined in current regulation 1.20P), under these Regulations new sponsorship undertakings to be made are:
• paying to the Commonwealth all costs incurred by the Commonwealth for locating the overseas participant, and for processing a protection visa application made by the overseas participant; and
• cooperating with the Department's monitoring of the approved professional development sponsor and of an overseas participant sponsored by the sponsor.
New regulation 1.20P is consistent with long-standing government policy that sponsors, rather than the general Australian community, have obligations in relation to persons they sponsor to come to or remain in Australia.
Regulation 1.20PA - Limit in relation to costs of location and detention
Subsection 140I(4) of the Act provides that the regulations may prescribe a limit to the amount of costs to the Commonwealth payable by a sponsor in locating and detaining a sponsored person, where the sponsor has made such an undertaking to pay those costs. New regulation 1.20PA is made in accordance with subsection 140I(4).
New regulation 1.20PA provides that the Commonwealth is unable to claim costs exceeding $10, 000 incurred through locating and detaining an overseas participant. Therefore, sponsors will not be liable for costs that exceed $10 000. The limit applies in relation to each sponsored person in respect of whom the sponsor has given the relevant undertaking.
1.20PB - Consequences if approved professional development sponsor or visa holder changes status
Section 140Q of the Act provides that the regulations may prescribe the circumstances in which, and for how long, a sponsor's undertaking remains enforceable when one of two triggering events occurs. Those triggering events are the cessation of the relevant visa and the cessation of the relevant sponsorship. New regulation 1.20PB is made in accordance with section 140Q.
New regulation 1.20PB outlines the period that an undertaking remains enforceable against an approved professional development sponsor or former approved professional development sponsor.
The undertakings listed in the table remain enforceable against a sponsor in the prescribed circumstances, beyond the period when the visa holder ceases to hold the Subclass 470 (Professional Development) visa for which he or she was sponsored, or when the sponsor ceases to be an approved professional development sponsor.
The prescribed enforceability provisions contained in new regulation 1.20PB are necessary to ensure that, where an undertaking has been breached, the Minister can adequately enforce compliance with that undertaking.
The enforceability period varies from one undertaking to another due to the varied nature of the undertakings. For example, where an overseas participant has incurred hospital expenses not covered by health insurance arrangements, the approved professional development sponsor who has made an undertaking to pay these (under new paragraph 1.20P(1)(l)) is required to do so even if the relevant visa has ceased or the sponsorship has ceased. Under new regulation 1.2PB, this particular liability continues until the expenses are paid.
The note immediately after regulation 1.20PB emphasises that undertakings do not take effect until a Subclass 470 (Professional Development) visa is granted to an overseas participant.
Subdivision 1.4C.3 - Cancelling or barring an approved professional development sponsor
New subdivision 1.4C.3 consists of new regulations 1.20Q, 1.20R and 1.20S of Part 1 of the Principal Regulations, as inserted by these Regulations.
Regulation 1.20Q - Cancelling or barring approval as a sponsor
New regulation 1.20Q outlines the process for cancelling the approval of, or barring, an approved professional development sponsor.
New subregulation 1.20Q(1) provides the circumstances in which the approval of an approved professional development sponsor may be cancelled, and when an approved professional development sponsor may be barred.
New subregulation 1.20Q(2) provides the criteria to be used by the Minister to determine which of the actions mentioned in section 140L of the Act to take. These actions relate to cancellation and barring actions against an approved professional development sponsor.
New subregulation 1.20Q(3) provides that, if the Minister decides to take one or more of the actions mentioned in section 140L of the Act, the Minister must give the sponsor written notice of the decision. The notice must specify those matters listed in subregulation 1.20Q(4). The purpose of subregulations 1.20Q(3) and (4) is to accord natural justice to a sponsor.
Regulation 1.20R - Waiving a bar
Section 140O of the Act provides that the regulations may prescribe the circumstances in which the Minister may determine whether to waive a bar placed on a person under section 140J or 140K of the Act, and the criteria to be taken into account when making that determination. New regulation 1.20R is made in accordance with section 140O.
New regulation 1.20R provides the circumstances in which the Minister may determine whether to waive a bar placed on the sponsor of a Subclass 470 (Professional Development) visa holder, and the criteria to be taken into account in making that determination.
The purpose of new regulation 1.20R is to enable the Minister to waive a bar imposed on an approved professional development sponsor or former approved professional development sponsor in limited circumstances, in accordance with the objective criteria prescribed in that regulation.
Regulation 1.20S - Giving notice about a bar, waiving a bar or cancellation
New regulation 1.20S provides that, if the Minister takes action mentioned in section 140L (concerning cancelling and barring) or 140O (concerning waiver of a bar) of the Act, the Minister must give the organisation notice of the action in accordance with section 494B of the Act (concerning methods by which the Minister gives documents to a person). This ensures that a sponsor is accorded with natural justice.
The purpose of the note after new regulation 1.20S is to clarify that, if the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the chosen method.
Subdivision 1.4C.4 - General
New subdivision 1.4C.4 consists of new regulation 1.20T of Part 1 of the Principal Regulations, inserted by these Regulations.
Regulation 1.20T - Disclosure of personal information
Section 140V of the Act provides that the regulations may prescribe:
• kinds of personal information about a visa holder (or former visa holder) which the Minister may disclose to an approved sponsor (or former approved sponsor); and
• the circumstances in which that information may be disclosed to the sponsor; and
• the circumstances in which the sponsor may then use or further disclose that information.
New regulation 1.20T is made in accordance with section 140V.
New regulation 1.20T prescribes the personal information about the holder or former holder of a Subclass 470 (Professional Development) visa that the Minister may disclose to an approved professional development sponsor or former approved professional development sponsor, and the circumstances when this disclosure is permitted.
New regulation 1.20T also outlines the circumstances in which an approved professional development sponsor or former approved professional development sponsor may use or disclose the personal information provided to them by the Minister.
The disclosure of personal information under new regulation 1.20T is necessary to accord natural justice to an approved professional development sponsor or former approved professional development sponsor, as they are held responsible for both their own actions and those of the overseas participant.
Item [3] - Paragraphs 4.02(4)(g) and (h)
This item substitutes new paragraphs 4.02(4)(g) and 4.02(4)(h) of Part 4 of the Principal Regulations.
Subregulation 4.02(4) relates to MRT-reviewable decisions under subsection 338(9) of the Act. Subsection 338(9) of the Act provides that a decision prescribed for the purposes of that subsection is an MRT-reviewable decision.
The purpose of new paragraph 4.02(4)(g) is to provide that a decision under subsection 140E(1) of the Act to refuse an application for approval as an approved professional development sponsor is an MRT-reviewable decision.
The purpose of new paragraph 4.02(4)(h) is to provide that a decision under paragraph 140L(a), (b), (c), (d), (e) or (f) of the Act to bar or cancel an approved professional development sponsor, or former approved professional development sponsor, is also an MRT-reviewable decision.
Item [4] - Paragraph 4.02(5)(g)
This item substitutes new paragraph 4.02(5)(g) of Part 4 of the Principal Regulations.
Subregulation 4.02(5) relates to who, for the purposes of paragraph 347(2)(d) of the Act, is able to make an application to the MRT for review of a decision prescribed under subsection 338(9) of the Act, and listed in subregulation 4.02(4).
New paragraph 4.02(5)(g) provides that, for paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in paragraph 4.02(4)(h), as amended by these Regulations, may only be made by an approved professional development sponsor or former approved professional development sponsor.
Item [5] - Schedule 1, Part 2, subparagraph 1220B(3)(a)(i)
This item amends subparagraph 1220B(3)(a)(i) of Schedule 1 to the Principal Regulations.
The purpose of new subparagraph 1220B(3)(a)(i) is to ensure that an applicant for a Sponsored Training (Temporary) (Class UV) visa is sponsored by an approved professional development sponsor who is not the subject of a bar mentioned in paragraph 140L(c) or (d) of the Act in relation to the sponsorship approval to which the application relates.
The note after new subparagraph 1220B(3)(a)(i) clarifies the extent of a bar imposed under paragraph 140L(c) or 140L(d) of the Act on an approved professional development sponsor.
Item [6] - Schedule 2, clause 470.225
This item substitutes new clause 470.225 of Schedule 2 to the Principal Regulations.
The purpose of new clause 470.225 is to ensure that, at the time of deciding the application, an applicant seeking to satisfy the primary criteria for the grant of a Subclass 470 (Professional Development) visa continues to be sponsored by an approved professional development sponsor who is not subject to a bar mentioned in paragraph 140L(c) or (d) of the Act in relation to the sponsorship approval to which the application relates.
Item [7] - Schedule 2, clause 470.228
This item substitutes new clause 470.228 of Schedule 2 to the Principal Regulations.
The purpose of new clause 470.228 is to ensure that, at the time of deciding the application, an applicant seeking to satisfy the primary criteria for the grant of a Subclass 470 (Professional Development) visa must be sponsored by an approved professional development sponsor who has made undertakings (mentioned in regulation 1.20P, inserted by these Regulations) in relation to the applicant.
Item [8] - Schedule 4, Part 2, after item 4055
This item inserts new item 4055AA into Part 2 of Schedule 4 to the Principal Regulations. Part 2 of Schedule 4 provides which visa conditions are applicable to certain subclasses of visas for the purposes of subclause 4013(2) of Part 1 of Schedule 4 to the Principal Regulations.
Subclause 4013(2) provides that a person is affected by a `risk factor' if the visa they previously held was cancelled under section 116 or 128 of the Act and one of the following paragraphs in subclause 4013(2) applies. Paragraph 4013(2)(b) clarifies that the risk factor applies where the cancelled visa was one of the subclasses of visa listed in Part 2 of Schedule 4 to the Principal Regulations, and the cancellation occurred because the person did not comply with a visa condition specified in the relevant Part of Schedule 2 to the Principal Regulations.
Under subclause 4013(1), if a person is affected by the risk factor mentioned in subclause 4013(2), the person is prevented from making an application for another visa within 3 years of the cancellation of the previous visa, unless the Minister is satisfied that there are compelling or compassionate circumstances justifying the grant of the visa within the 3 year period.
New item 4055AA of Part 2 of Schedule 4 provides that conditions 8102, 8501, 8531 and 8536 apply in relation to a Subclass 470 (Professional Development) visa for the purposes of subclause 4013(2) of Part 1 of Schedule 4.
These conditions provide that:
• 8102 - the visa holder must not engage in work in Australia, other than in relation to the holder's course of study or training;
• 8501 - the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia;
• 8531 - the visa holder must not remain in Australia after the end of the period of stay permitted by the visa; and
• 8536 - the visa holder must not discontinue, or deviate from, the professional development program in relation to which the visa was granted.
The purpose of this amendment is as follows: by adding subclass 470 (Professional Development) visa, and the relevant visa conditions, to the list of visa subclasses and conditions in Part 2 of Schedule 4 to the Principal Regulations, a person whose subclass 470 (Professional Development) visa is cancelled under section 116 or 128 of the Act for a breach of one of those conditions is affected by the risk factor mentioned in subclause 4013(2) and therefore subject to the exclusion period provisions of subclause 4013(1).
Schedule 3 - Amendments relating to Business (Long Stay) visas
Item [1] - Subregulation 1.20(4)
This item amends subregulation 1.20(4) of Part 1 of the Principal Regulations, relating to sponsorship obligations. This amendment is consequential to the insertion of new paragraph 1.20(4)(h) in Part 1 of the Principal Regulations, by these regulations.
Item [2] - After paragraph 1.20(4)(g)
This item inserts new paragraph 1.20(4)(h) into Part 1 of the Principal Regulations.
The purpose of new paragraph 1.20(4)(h) is to exclude visa Subclass 457 from the operation of regulation 1.20. Regulation 1.20 lists the obligations of a sponsor in relation to an applicant for a number of sponsored visas. The obligations of a sponsor of a Subclass 457 visa holder are prescribed separately in new regulation 1.20CB, inserted by these Regulations.
Item [3] - Regulation 1.20B, after definition of pre-qualified business sponsor
This item amends regulation 1.20B of Part 1 of the Principal Regulations by inserting a definition of "sponsored person". Regulation 1.20B lists a number of definitions relevant to Division 1.4A of the Principal Regulations. Division 1.4A relates to sponsorship and nominations within the temporary business entry regime.
The purpose of the amendment is to clarify the link between a sponsored person and their sponsor (or prospective sponsor), for the purposes of Division 1.4A. This link is especially important in terms of:
• a sponsor's undertakings and their enforceability (see new regulations 1.20CB, 1.20CC and 1.20DB, inserted by these Regulations);
• the terms of a sponsorship approval (see new regulation 1.20E, inserted by these Regulations); and
• the type of personal information about a sponsored person which can be released, and under what circumstances (see new regulation 1.20IA, inserted by these Regulations).
A sponsored person is a person who holds or seeks to be granted a Subclass 457 visa on the basis of satisfying the primary criteria, and who is, or if granted the visa would be, employed by the sponsor. The new definition of sponsored person also includes members of the family unit of such persons.
This item also inserts two explanatory notes. Note 1 provides a reference to paragraph 1.20D(2)(b) of the Principal Regulations for information about related bodies corporate.
Note 2 clarifies when undertakings made by an applicant for approval as a standard business take effect under various provisions of the Act and the Principal Regulations, as amended by these Regulations.
Item [4] - After regulation 1.20B
This item inserts new regulation 1.20BA into Part 1 of the Principal Regulations.
This amendment is made under section 140A in Division 3A of Part 2 of the Act which enables visas of a prescribed kind (however described) to opt into the new sponsorship regime established by the Migration Legislation Amendment (Sponsorship Measures) Act 2003, which now constitutes Division 3A of Part 2 of the Act.
The purpose of this amendment is to opt the Australian business-sponsored and overseas business-sponsored Subclass 457 (Business (Long Stay)) visas into the new sponsorship regime. This amendment makes it clear that, as a result of this amendment, Division 3A of Part 2 of the Act applies to sponsored Subclass 457 (Business (Long Stay)) visa holders, and their sponsors, as well as family unit members of these sponsored Subclass 457 (Business (Long Stay)) visa holders.
Division 3A of Part 2 of the Act covers such things as making sponsorship a criterion for the grant of a visa, the process of applying for and being approved as a sponsor, sponsorship undertakings and sanctions against sponsors in the case of non-compliance with undertakings, or in other circumstances. It also covers the disclosure of personal information about a sponsored person to a sponsor (and others) in certain circumstances, for example where a sponsor is seeking merits review of a decision by the Minister to impose sanctions against them.
There are a number of other "streams" of visa Subclass 457 which are not affected by the opting in of the above two sponsored streams, as they do not have sponsorship requirements. They are the Labour Agreements, Regional Headquarters Agreements, Independent Executives, Service Sellers, Persons Accorded Certain Privileges and Immunities and Invest Australia Supported Skills Scheme streams.
Item [5] - Subregulation 1.20C(1)
This item amends subregulation 1.20C(1) of Part 1 of the Principal Regulations, relating to applications for approval as a standard business sponsor.
The purpose of this amendment is to clarify that current subregulation 1.20C(1) of the Principal Regulations is now made under subsection 140F(1) of the Act. Subsection 140F(1) of the Act deals with the process for approving sponsors, such as standard business sponsors, and provides that the regulations may establish a process for the Minister to approve a person as a sponsor. The effect of this amendment is that it brings the process under subregulation 1.20C(1) for applying for approval as a standard business sponsor within the ambit of the Act.
Item [6] - After regulation 1.20CA
This item inserts new regulations 1.20CB and 1.20CC into Part 1 of the Principal Regulations. These new provisions relate to sponsorship undertakings and limits regarding a sponsor's liabilities under some of those undertakings.
New regulation 1.20CB outlines the undertakings that an applicant for approval as a standard business sponsor must make in relation to a sponsored person. The power to impose sponsorship responsibilities on a prospective sponsor in relation to a sponsored person derives from section 140H of the Act. By making these undertakings, an applicant for approval as standard business sponsor is agreeing to:
• adhere to the undertakings; and
• in the case of non-adherence, be exposed to the possibility of Immigration taking action against them of the type mentioned in section 140L of the Act.
New regulation 1.20CB includes undertakings in relation to debts to the Commonwealth incurred by the sponsored person (including, where necessary, the costs of locating, detaining and removing a sponsored person, as well as the costs incurred where a sponsored person has made an application for a protection visa), compliance with Australia's immigration, workplace relation and taxation laws, and co-operation with Immigration's monitoring of sponsors and the persons they sponsor.
This provision is consistent with long-standing government policy that sponsors, rather than the general Australian community, have obligations in relation to persons they sponsor to come to or remain in Australia.
Item [6] also inserts two explanatory notes. The first note, which immediately follows new subregulation 1.20CB(1), clarifies when a sponsor's undertakings take effect, and also that sponsorship is a criterion for the grant of the two streams of visa Subclass 457 which are being opted into the sponsorship regime contained in Division 3A of Part 2 of the Act.
The second note, which immediately follows new subregulation 1.20CB(2), clarifies that new regulation 1.20CC prescribes a monetary limit in relation to the undertakings listed in new paragraph 1.20CB(1)(n).
New regulation 1.20CC is made under subsection 140I(4) of the Act, and limits the costs of location and detention payable by a sponsor of a Subclass 457 visa holder to $10,000. The limit applies in relation to each sponsored person in respect of whom the sponsor has given the relevant undertaking.
Item [7] - Subregulation 1.20D(1)
This item amends subregulation 1.20D(1) of Part 1 of the Principal Regulations.
The amendment also clarifies that subregulation 1.20(D)(1) of the Principal Regulations is made under subsections 140E(1), 140F(1) and 140G(1) of the Act. These subsections deal with: approving sponsors, the process for approving sponsors and the terms of approval of a sponsorship, respectively.
The purpose of this amendment is to ensure consistency with the new Sponsorship Measures Act by clarifying that the Minister must approve an application for approval as an Australian standard business sponsor (that is, a business operating in Australia) if certain criteria are met. These criteria are set out in subregulation 1.20(D)(2).
The effect of this amendment is that it brings the process under regulation 1.20D for being approved as an Australian standard business sponsor within the ambit of the Act.
Item [8] - Paragraph 1.20D(2)(f)
This item amends paragraph 1.20D(2)(f) of Part 1 of the Principal Regulations, and is consequential to the insertion of new paragraph 1.20D(2)(g) in Part 1 of the Principal Regulations, by these regulations.
Item [9] - After paragraph 1.20D(2)(f)
This item inserts new paragraph 1.20D(2)(g) into Part 1 of the Principal Regulations, relating to circumstances in which an applicant for approval as an Australian standard business sponsor has been required to give a security in relation to the applicant's undertaking as a sponsor.
Subregulation 1.20D(2) of the Principal Regulations sets out the criteria an applicant for approval as an Australian standard business sponsor must satisfy in order for their application to be successful.
The purpose of new paragraph 1.20D(2)(g) is to require that, where an applicant for approval as an Australian standard business sponsor has been requested to provide a security under section 269 of the Act for compliance with the provisions of the Act and the Principal Regulations, they must have given the security (as well as meet the other requirements of subregulation 1.20D(2)) before their application can be approved.
Item [10] - Subregulation 1.20DA(1)
This item amends subregulation 1.20DA(1) of Part 1 of the Principal Regulations, and mirrors the amendments to subregulation 1.20D(1) by these Regulations.
The amendment clarifies that subregulation 1.20D(1) of the Principal Regulations is made under subsections 140E(1), 140F(1) and 140G(1) of the Act. These subsections deal with: approving sponsors, the process for approving sponsors and the terms of approval of a sponsorship, respectively.
The purpose of this amendment is to ensure consistency with the new Sponsorship Measures Act by clarifying that the Minister must approve an application for approval as an overseas standard business sponsor (that is, a business operating outside Australia) if certain criteria are met. These criteria are set out in subregulation 1.20D(2).
The effect of this amendment is that it brings the process under regulation 1.20DA for being approved as an overseas standard business sponsor within the ambit of the Act.
Item [11] - Paragraph 1.20DA(2)(e)
This item amends paragraph 1.20DA(2)(e) of Part 1 of the Principal Regulations, and is consequential to the insertion of new paragraph 1.20DA(2)(f) into Part 1 of the Principal Regulations, by these Regulations.
Item [12] - After paragraph 1.20DA(2)(e)
This item inserts new paragraph 1.20DA(2)(f) into Part 1 of the Principal Regulations, relating to circumstances in which an applicant for approval as an overseas standard business sponsor has been required to give a security in relation to the applicant's undertaking as a sponsor.
Subregulation 1.20DA(2) of the Principal Regulations sets out the criteria an applicant for approval as an overseas standard business sponsor must satisfy in order for their application to be successful.
The purpose of new paragraph 1.20DA(2)(f) is to require that, where an applicant for approval as an overseas standard business sponsor has been requested to provide a security under section 269 of the Act for compliance with the provisions of the Act and the Principal Regulations, they must have given the security (as well as meet the other requirements of subregulation 1.20DA(2)) before their application can be approved.
Item [13] - After regulation 1.20DA
This item inserts new regulations 1.20DB and 1.20E into Part 1 of the Principal Regulations. These new regulations relate to the enforceability of sponsorship undertakings and terms of approval of sponsorship approvals, respectively.
Regulation 1.20DB - Consequences if approved business sponsor or sponsored person changes status
New regulation 1.20DB is made under subsection 140Q(1) of the Act, and outlines the period of enforceability for particular undertakings. The enforceability period for different undertakings varies due to the varied nature of the undertakings. For example, where a sponsored person has incurred hospital expenses not covered by health insurance arrangements, a standard business sponsor who has made an undertaking to pay these (under new paragraph 1.20CB(1)(k), inserted by these Regulations), is required to honour this undertaking, even if the sponsored person's visa has ceased, or if the sponsorship approval has ceased. In this particular case, the obligation continues until the time that the outstanding expenses are paid.
This item also inserts two explanatory notes in regulation 1.20DB. The first note clarifies that the Australian sponsored Subclass 457 and overseas sponsored Subclass 457 visas are covered by the operation of new regulation 1.20BA, and so come within the ambit of new regulation 1.20DB.
The second note clarifies that, under subsection 140Q(1) of the Act, where a sponsorship undertaking listed in new regulation 1.20CB does not appear in the table in new regulation 1.20DB, the enforceability of that undertaking against a sponsor ceases when either:
• the sponsored person ceases to hold the visa for which he or she was sponsored; or
• the sponsor ceases to be an approved sponsor.
For example, the undertaking to notify Immigration within 5 working days after a sponsored person ceases to be in the department's employment (see new paragraph 1.20CB(1)(f) of the Principal Regulations, inserted by these Regulations) is enforceable until either of the above events occurs, and not beyond that time.
The prescribed enforceability provisions contained in new regulation 1.20DB are necessary to ensure that where an undertaking has been breached, the Minister can adequately enforce compliance with that undertaking.
Regulation 1.20E - Term of approval as standard business sponsor
New regulation 1.20E is made under subsection 140G(2) of the Act and specifies, as a term of approval as a standard business sponsor, when the approval ceases in relation to a sponsored person.
The purpose of this amendment is to provide when a sponsor ceases to be an approved sponsor for the purposes of enforcing the sponsorship undertakings contained in new regulation 1.20CB, inserted by these Regulations.
Item [14] - After regulation 1.20H
This item inserts new regulations 1.20HA, 1.20HB, 1.20HC and 1.20HD into Part 1 of the Principal Regulations, which deal with sanctions which may be imposed against sponsors in various circumstances, as well as with the process of having a bar waived. The relevant sanctions provisions are contained in sections 140J, 140K and 140L of the Act, and those relating to a waiver of a bar in sections 140O and 140P of the Act.
Regulation 1.20HA - Cancelling or barring approval as a sponsor if undertakings breached
New regulation 1.20HA provides, in accordance with subsection 140J(2) of the Act, the circumstances in which the Minister may take one or more of the cancelling or barring actions mentioned in paragraphs 140L(a), (c), (d), (e), (f) or (g) of the Act when a sponsor has breached one or more undertakings, as well as the criteria to be taken into account when determining exactly what action will be taken under those provisions.
The purpose of new regulation 1.20HA is to provide transparency in the sanctioning process in relation to the types of possible action or actions which could be taken against a sponsor and the factors which must be considered when coming to this decision.
The new Note in regulation 1.20HA clarifies that this provision does not relate to the cancellation of an approval of a business sponsor (as defined in section 137A of the Act), which is dealt with separately by Subdivision GA of Division 3 of the Act.
Regulation 1.20HB - Cancelling or barring approval as a sponsor in circumstances other than those set out in regulation 1.20HA
New regulation 1.20HB supplements new regulation 1.20HA. Whilst new regulation 1.20HA deals with circumstances where a sponsor has breached an undertaking, new regulation 1.20HB provides, in accordance with subsection 140K(1) of the Act, circumstances in which the Minister may take one or more of the cancelling or barring actions mentioned in paragraphs 140L(a), (c), (d), (e), (f) or (g) of the Act when such action is being considered for reasons other than a breach of undertaking. This could include, for example, where a sponsor has repudiated its undertakings, or it is found that the sponsor has made false claims when applying for approval as a sponsor.
The purpose of new regulation 1.20HB is the same as that for new regulation 1.20HA, that is, to provide transparency in the sanctioning process in relation to the types of possible action or actions which could be taken against a sponsor and the factors which must be considered when coming to this decision.
The new Note in regulation 1.20HB is identical to the Note after new regulation 1.20HA, and clarifies that this provision does not relate to the cancellation of an approval of a business sponsor (as defined in section 137A of the Act), which is dealt with separately by Subdivision GA of Division 3 of the Act.
Regulation 1.20HC - Waiving a bar
New regulation 1.20HC relates to the situation where a bar has been imposed against a sponsor, and the sponsor is seeking to have that bar waived.
New subregulation 1.20HC(1) clarifies that the two sponsored streams within visa Subclass 457 (Business (Long Stay)) are prescribed for subsection 140O(1) of the Act. The effect of this is that the waiving provisions contained in the Act can be applied to these two visa streams.
New subregulation 1.20HC(2) sets out, in accordance with subsection 140O(2) of the Act, the circumstances in which the Minister may consider waiving a bar placed on a sponsor. New subsection 1.20HC(3) sets out the criteria which must be taken into account by the Minister when a waiver of a bar is being considered.
The purpose of new regulation 1.20HC is to provide transparency in the process for waiving a bar by specifying the limited circumstances in which waiver may be considered and the factors that must be taken into account. That there are limited circumstances in which a waiver of a bar may be possible underlies broader policy that the decision to impose a bar in the first place will be considered very carefully, after a thorough assessment of prescribed criteria.
Regulation 1.20HD - Process for waiving a bar
New regulation 1.20HD provides, in accordance with subsection 140P(1) of the Act, the process for waiving a bar. New regulation 1.20HD requires that such a request to the Minister must be made in writing.
The purpose of this amendment is to clarify that only a written request for a waiver of a bar will be considered.
Item [15] - After regulation 1.20I
This item inserts new regulation 1.20IA into Part 1 of the Principal Regulations, and relates to the disclosure of personal information about a sponsored Subclass 457 visa holder (or former visa holder) in prescribed circumstances, in accordance with section 140V of the Act.
New regulation 1.20IA provides:
• in new paragraph 1.20IA(a) - the types of information about a sponsored Subclass 457 visa holder (or former visa holder) which can be released to a standard business sponsor (or former standard business sponsor);
• in new paragraph 1.20IA(b) - the circumstances in which disclosure by the Minister to the sponsor of former sponsor is allowed; and
• in new paragraph 1.20IA(c) - where personal information has been disclosed to the sponsor of former sponsor, the circumstances in the sponsor may use or disclose the personal information.
The purpose of this amendment is to make available to sponsors prescribed information about the person they are sponsoring or formerly sponsored, in circumstances where the sponsor has been sanctioned, or is possibly going to be sanctioned, because of the actions of the sponsored or formerly sponsored person. This is so that the sponsor can clarify its situation vis-à-vis Immigration, and possibly avoid being sanctioned, seek to have a sanction removed (such as waiver of a bar), or have a sanction decision set aside by a merits review tribunal.
The release of any personal information as above is authorised by Information Privacy Principle 11.1(d) in section 14 of the Privacy Act 1988, whereby the disclosure is required or authorised by or under law.
Item [16] - After subregulation 4.02(1)
This item inserts new subregulation 4.02 (1B) into Part 4 of the Principal Regulations. Regulation 4.02 is made under section 338 of the Act, and relates to decisions which are reviewable by the Migration Review Tribunal (MRT). Paragraph 338(2)(d) of the Act provides that, for a temporary visa which is prescribed for the purposes of that paragraph, and where it is a criterion for the grant of the visa that the person seeking to be granted the visa is sponsored by an approved sponsor, a decision to refuse the application for the visa is reviewable by the MRT where:
• the person seeking to be granted the visa is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
• an application for review of a decision not to approve the sponsor has been made, but not finalised, at the time the application to review the decision to refuse to grant the visa is made, and review of the sponsorship decision is pending.
New subregulation 4.02(1B) provides that visa Subclass 457 is prescribed for the purposes of paragraph 338(2)(d) of the Act. Thus a person who is refused a Subclass 457 visa who meets the requirements of paragraph 338(2)(d) of the Act can seek review of this decision at the MRT. Persons who have been refused a Subclass 457 visa, but who do not meet the requirements of subsection 338(2) of the Act are prohibited from accessing merits review at the MRT.
The purpose of new subregulation 4.02(1A) is to limit access to the merits review by applicants refused a Subclass 457 visa. Applicants refused a Subclass 457 visa who do not have an approved sponsor, and therefore have no ability to satisfy the criteria for the grant of the visa are prevented from extending their stay in Australia on the basis of lodging a frivolous merits review application.
Item [17] - Paragraph 4.02(4)(i)
This item substitutes paragraph 4.02(4)(i) of Part 4 of the Principal Regulations with new paragraph 4.02(4)(i).
Subregulation 4.02(4) is made under subsection 338(9) of the Act, and relates to decisions which are prescribed under subsection 338(9) as reviewable by the MRT. This amendment adds to the list of prescribed decisions a decision to bar or cancel (of the type mentioned in paragraph 140L(a), (c), (d), (e), (f) or (g) of the Act and taken under subsection 140J(2) or 140K(2) of the Act) a standard business sponsor or former standard business sponsor.
Item [18] - After paragraph 4.02(5)(g)
This item inserts new paragraph 4.02(5)(h) into Part 4 of the Principal Regulations.
Subregulation 4.02(5) is made under paragraph 347(2)(d) of the Act, and relates to who is able to make an application for review by the MRT of a decision mentioned in subregulation 4.02(4) of the Principal Regulations.
This amendment provides that, for a decision listed in new paragraph 4.02(4)(i) of the Principal Regulations, inserted by these Regulations, an application for review by the MRT can only be made by the former sponsor, or former approved sponsor, to whom the decision relates.
Item [19] - Schedule 2, paragraph 457.223(4)(h)
This item amends paragraph 457.223(4)(h) of Schedule 2 to the Principal Regulations.
This amendment is consequential to the insertion of new paragraph 457.223(4)(i) into Schedule 2 to the Principal Regulations, by these Regulations.
Item [20] - Schedule 2, after paragraph 457.223(4)(h)
This item inserts new paragraph 457.223(4)(i) into Schedule 2 to the Principal Regulations.
New paragraph 457.223(4)(i) provides that an applicant for an Australian business sponsored Subclass 457 visa must be sponsored by an approved sponsor within the meaning of section 140D of the Act, as well as satisfying other criteria, to be eligible for the grant of the visa.
Although it is a requirement that applicants for Australian business sponsored Subclass 457 visas are employed by a standard business sponsor (under paragraph 457.223(4)(b) of the Principal Regulations), and nominated in relation to the activity by the employer (under paragraph 457.223(4)(c)), there is no requirement that an applicant is sponsored by an approved sponsor (within the meaning of section 140D of the Act).
One effect of making sponsorship by an approved sponsor a criterion for the grant of a Subclass 457 visa is that an applicant who is refused the visa is eligible for merits review at the MRT under new subregulation 4.02(1A), inserted by these regulations. In this case, under paragraph 347(2)(a) of the Act, it is the refused applicant themselves who must make the application to the MRT.
Item [21] - Schedule 2, paragraph 457.223(5)(i)
This item amends paragraph 457.223(5)(i) of Schedule 2 to the Principal Regulations.
This amendment is consequential to the insertion of new paragraph 457.223(5)(j) in Schedule 2 to the Principal Regulations, by these regulations.
Item [22] - Schedule 2, after paragraph 457.223(5)(i)
This item inserts new paragraph 457.223(5)(j) in Schedule 2 to the Principal Regulations.
New paragraph 457.223(5)(j) provides that an applicant for an overseas business sponsored Subclass 457 visa must be sponsored by an approved sponsor within the meaning of section 140D of the Act, as well as satisfying other criteria, to be eligible for the grant of the visa.
Although it is a requirement that applicants for overseas business sponsored Subclass 457 visas are employed by a standard business sponsor (under paragraph 457.223(5)(b) of the Principal Regulations), and nominated in relation to the activity by the employer (under paragraph 457.223(4)(c)), there is no requirement that an applicant is sponsored by an approved sponsor (within the meaning of section 140D of the Act).
One effect of making sponsorship by an approved sponsor a criterion for the grant of a Subclass 457 visa is a decision to refuse to grant the visa is reviewable at the MRT under subsection 338(5) of the Act. However, unlike the case where an Australian business sponsored Subclass 457 visa is refused, in this case, under paragraph 347(2)(b) of the Act, it is the sponsor (rather than the refused applicant themselves) who must make the application to the MRT.
Item [23] - Schedule 2, after clause 457.324
This item inserts new clause 457.324A in Schedule 2 to the Principal Regulations.
This amendment is consequential to new paragraphs 457.223(4)(i) and 457.223(5)(j), inserted by these regulations, relating to sponsorship by an approved sponsor being a criterion for the grant of a Subclass 457 visa. This amendment extends that requirement to members of the family unit of a sponsored Subclass 457 visa applicant who has satisfied the primary criteria.
Merits review options for refused family unit member applicants are identical to the merits review options for the refused primary visa applicant, as described above.
Schedule 4 - Amendments relating to student visas
Item [1] - Paragraph 1.41(4)(b)
This item makes a technical amendment to paragraph 1.41(4)(b) of Part 1 of the Principal Regulations to omit the words "each education sector" and insert the words "each subclass of student visa.
The purpose of this amendment is to correct an inconsistency in the Principal Regulations. Subregulation 1.41(1) requires the Minister to specify an assessment level for a kind of eligible passport, in relation to "each subclass of student visa", not in relation to "each education sector".
Item [2] - Subregulation 1.42(1)
This item substitutes subregulation 1.42(1) of Part 1 of the Principal Regulations with new subregulation 1.42(1).
New subregulation 1.42(1) provides that an applicant for a student visa who seeks to satisfy the primary criteria, will be subject to the assessment level specified by the Minister at the time that the visa application was lodged, for the kind of eligible passport held by that person at the time of decision and for the relevant subclass of student visa.
The purpose of this amendment is to clarify the existing procedure relating to the appropriate assessment level of a particular student visa application, which is currently referred to in a relevant Gazette Notice. That is, where a new assessment level takes effect after an applicant has lodged their application for a student visa, the assessment level that applied at the time of application should continue to apply to the applicant.
Note the term "relevant subclass of student visa" is intended to mean the subclass of student visa appropriate to the applicant's proposed principal course, where the applicant is not sponsored by the AusAID Minister or the Defence Minister.
Item [3] - Schedule 5, clause 5010
This item substitutes clause 5010 of Schedule 5 to the Principal Regulations with new clause 5010.
The purpose of this amendment is to ensure that the requirements in subclause 5010(3), (4) or (5) must also be met by a person who does not hold an AusAID student visa, but who has at any time in the past been the holder of an AusAID student visa. Where such a person has held multiple AusAID student visas it is the applicant's "last held" AusAID student visa that is to be considered when meeting the requirements of subclauses 5010(3) and (4).
New clause 5010 also clarifies that the terms "AusAID student visa" and "cease" have the same meaning as in regulation 1.04A for the purposes of the clause.