EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 221

 

Issued by the Minister for Immigration

and Multicultural and Indigenous Affairs

 

Subject -          Migration Act 1958

 

                        Migration Amendment Regulations 2005 (No. 8)

 

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 the Attachment A

The purpose of the proposed Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to reflect changes necessary for the operation of immigration policy and regulations in relation to student visas; remaining relatives; New Zealand Citizen visa holders; personal identification; sponsor undertakings relating to medical and hospital expenses and employer sponsored applicants.

 

In particular, the Regulations will:

*        permit combined applications by all family members seeking a Subclass 580 Student Guardian visa, which will assist families in the visa application process, and ensure all family members are declared in the visa applications;

*        amend the definition of Remaining Relative used for both Remaining Relative visa Subclasses 115 (offshore) and 835 (onshore), in order to restrict eligibility to applicants who, with their spouse (if any), have no near relatives except those who are Australian citizens, or Australian permanent residents or eligible New Zealand citizens, and who are usually resident in Australia, which will reduce eligibility for these visas;

*        prescribe that holders of the Subclass 461 New Zealand Citizen (Family Relationship) (Temporary) visa qualify to apply for various skilled migration visas, which will ensure New Zealand citizens and their dependent family members who are not themselves New Zealand citizens the same access to the employer sponsored visa program;

*        prescribe the time period in which a person must comply with an officer's request to show evidence of being a lawful non-citizen or of their identity and the circumstances in which an officer must require a person to provide personal identifiers;

*        clarify and limit the scope of the medical and hospital expenses undertaking given by a sponsor in relation to a standard business sponsorship, a professional development sponsorship and a special student sponsorship, whereby sponsors will undertake to pay all medical or hospital expenses for a sponsored person arising from treatment administered in a public hospital;

*        expand the student visa evidentiary requirements relating to English language proficiency for certain 'high immigration risk' applicants;

*        ensure that an applicant for a student visa is not affected by changes in the relevant specified courses which may occur after they have made their application;

*        ensure that the amendments made by the Migration Amendment Regulations 2005(No. 3), relating to English language proficiency and course requirements for student visas, apply to applications made on and after 1 July 2005, as originally intended;

*        extend the range of persons applying for an Independent (Migrant) (Class AT) visa; a

Skilled -- Independent (Migrant) (Class BN) visa; or a Skill -- Matching (Migrant) (Class BR) visa, to be deemed to have made an application for an Employer Nomination (Migrant) (Class AN) visa. This will extend provision for a deemed application for an Employer Nomination (Migrant) (Class AN) visa to relevant applicants who are, or become, the subject of an approved appointment under subregulation 5.19(2) relating to the Employer Nomination Scheme (ENS) anywhere in Australia; and

*        allow for exceptional circumstances to be taken into consideration in exercising mandatory cancellation of student visas for breach of a condition relating to attendance and academic achievement. This will ensure that students who attend a DIMIA office within 28 days from the date of a section 20 notice will receive similar treatment to students who apply for revocation after their visa has been cancelled under section 137J of the Act.

 

Details of the Regulations are set out in Attachment B.

 

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

 

The Regulations will be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence, or are taken to have commenced, as follows:

*        on 27 August 2004 -- regulations 1 to 11 and Schedule 1. Schedule 1 corrects an unintended oversight which fails to provide for the dependents of Student Guardian visa applicants to make a combined application with the primary person. The Regulations will have retrospective effect by permitting combined visa applications by persons seeking a Student Guardian visa, from 27 August 2004. The Office of Legislative Drafting and Publishing (OLDP) advises that this amendment is not contrary to subsection 12(2) of the Legislative Instruments Act 2003 as the change does not result in:

-         the rights of any person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration being affected so as to disadvantage that person; or

-         liabilities being imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration;

*        on the day after the Regulations are registered -- Schedules 2 to 5. These amendments implement provisions which are intended to commence as soon as possible after the Regulations are made; and

*        on 1 November 2005 -- Schedules 6 to 10. The commencement date allows time for various systems developments necessary to allow the implementation of the Regulations.

 

Transitional provisions will clarify which provisions apply to people who have applications pending at the time the proposed Regulations will commence.

 

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

 

The following external agencies and other bodies were consulted in relation to the Regulations:

*        The Department of Health and Ageing regarding the form of the amended medical and hospital sponsor undertakings in Schedule 9;

*        Education peak bodies and the National Liaison Committee for International Students were consulted and requested greater flexibility in the regulations relating to English language proficiency requirements for continuing students in Schedule 3;

*        The Australian Vice Chancellors' Committee; English Australia; TAFE Directors Australia; Australian Council for Private Education and Training; Australian Council of Independent Vocational Colleges; Schools International Government Group; Independent Schools Council of Australia; the Department of Education, Science and Training; the Australian Trade Commission (Austrade); and the Department of Immigration and Multicultural and Indigenous Affairs (NSW State Office Representative) relating to consideration of exceptional circumstances in exercising mandatory cancellation of student visas in Schedule 5. All of the external agencies and other bodies welcomed this proposed legislative change.

 

No other consultations were conducted in relation to the other Schedules to the Regulations, as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 

The Minute recommends that Regulations be made in the form proposed.

 

 

 

0513109A-050825Z

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:

*        subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 36, 37 or 37A but not by sections 33, 34, 35 or 38 of the Act);

*        subsection 31(5) of the Act, which provides that the regulations may specify that a visa is a visa of a particular class;

*        subsection 46(1) of the Act, which provides that the regulations may prescribe criteria and requirements that must be satisfied for an application for a visa to be a valid application;

*        subsection 46(2) of the Act provides that an application for a visa is valid if:

-         it is an application for a visa of a class prescribed for the purposes of this subsection; and

-         under the regulations, the application is taken to have been validly made;

*        subsection 46(3) of the Act, 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;

*        subsection 46(4) of the Act, which provides, inter alia, that the regulations may prescribe, without limiting subsection 46(3):

-         the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

-         how an application for a visa of a specified class must be made;

*        subsection 116(3) of the Act, which provides that the regulations may prescribe the circumstances in which the Minister must cancel a visa under subsection 116(1);

*        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;

*        subsection 188(2) of the Act, which provides that a person must comply with a requirement under subsection 188(1) of the Act within a period specified by an immigration officer, being a prescribed period or such further period as the officer allows;

*        subsection 188(3) of the Act, which provides that the regulations prescribing a period for compliance may prescribe different periods and the circumstances in which a particular prescribed period is to apply, which may be when the requirement is oral or when the requirement is in writing; and

*        subsection 188(4) of the Act, which provides that if prescribed circumstances exist, the officer must require the person to provide one or more personal identifiers.

 

 

 

ATTACHMENT B

 

Details of the proposed Migration Amendment Regulations 2005 (No. 8)

 

Regulation 1 -- Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 8).

 

Regulation 2 -- Commencement

 

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

*        on 27 August 2004 -- regulations 1 to 11 and Schedule 1;

*        on the day after these Regulations are registered -- Schedules 2 to 5;

*        on 1 November 2005 -- Schedules 6 to 10.

 

Regulation 3 -- Amendment of Migration Regulations 1994

 

This regulation provides that Schedules 1 to 10 amend the Migration Regulations 1994 (the Principal Regulations).

 

Regulation 4 -- Transitional -- Schedule 1

This regulation provides that the amendment made by Schedule 1 applies in relation to an application for a visa made on or after 27 August 2004.

 

Regulation 5 -- Transitional -- Schedule 3

 

This regulation provides that:

*        the amendments made by Part 1 of Schedule 3 apply in relation to:

-         an application for a visa made on or after 1 July 2005 and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before Schedule 3 commences; and

-         an application for a visa made on or after the day on which Schedule 3 commences;

*        despite the amendments made by Part 1 of Schedule 3, the Migration Regulations 1994 are taken to apply in relation to an application for a visa made before

1 July 2005 and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 July 2005 as if those amendments had not been made; and

*        the amendments made by Part 2 of Schedule 3 apply in relation to:

-         an application for a visa made before Schedule 3 commence and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before Schedule 3 commences; and

-         an application for a visa made on or after the day on which Schedule 3 commences.

 

Regulation 6 -- Transitional -- Schedule 4

 

This regulation provides that the amendments made by Schedule 4 apply in relation to:

*        an application for a visa made before Schedule 4 commences and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before Schedule 4 commences; and

*        an application for a visa made on or after the day Schedule 4 commences.

 

Regulation 7 -- Transitional -- Schedule 5

 

This regulation provides that the amendment made by Schedule 5 applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which these Regulations commence, whether or not a breach of condition 8202 occurred before Schedule 5 commences.

 

Regulation 8 -- Transitional -- Schedule 6

 

This regulation provides that the amendments made by Schedule 6 apply in relation to an application for a visa made on or after 1 November 2005.

 

Regulation 9 -- Transitional -- Schedule 7

 

This regulation provides that:

*        the amendments made by Schedule 7 apply in relation to an application for a visa made on or after 1 November 2005; and

*        despite the amendments made by Schedule 7, the Migration Regulations 1994 are taken to apply in relation to an application for a visa made before

1 November 2005 and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 November 2005 as if those amendments had not been made.

 

Regulation 10 -- Transitional -- Schedule 8

 

This regulation provides that:

*        the amendments made by Schedule 8 apply in relation to an application for a visa made on or after 1 November 2005; and

*        despite the amendments made by Schedule 8, the Migration Regulations 1994 are taken to apply in relation to an application for a visa made before

1 November 2005 and not finally determined (within the meaning of

subsection 5 (9) of the Migration Act 1958) before 1 November 2005 as if those amendments had not been made.

 

Regulation 11 -- Transitional -- Schedule 10

This regulation provides that the amendment made by Schedule 10 applies in relation to an applicant for a visa, described in subregulation 2.08C (1) of the Migration Regulations 1994:

*        whose application for a visa was made before 1 November 2005 and not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 November 2005; or

*        whose application for a visa was made on or after 1 November 2005.

 

Schedule 1 -- Amendment relating to student visas (taken to have commenced on 27 August 2004)

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

This item substitutes the words "student visa" in paragraph 1222(3)(d) of Schedule 1 to the Principal Regulations, with the words "Student (Temporary) (Class TU) visa".

This amendment permits a person seeking a Student (Temporary) (Class TU) Subclass 580 Student Guardian visa to combine their application with the applications of members of the same family unit.

On 27 August 2004 the Student Guardian visa regulations were amended to allow members of a family unit to be included as secondary applicants. However the regulations were not amended to allow members of a family unit to make combined applications. As a result, members of a family unit are each required to lodge a separate application form and pay a separate visa application charge. This amendment will permit secondary applicants to make a combined application on the same form and without paying a separate visa application charge.

 

Schedule 2 -- Amendment relating to personal identification

Item [1] -- After regulation 3.17

This item inserts new regulation 3.19 in Division 3.3 after regulation 3.17 in Division 3.2 of Part 3 of the Principal Regulations.

 

New regulation 3.19 prescribes, for subsections 188(2) and 188(3) of the Act, the time period in which a person who is known or reasonably suspected to be a non-citizen is required to comply with a request made by an immigration officer to provide evidence of their lawfulness or identity under subsection 188(1) of the Act. A person can comply with a request made under subsection 188(1) by providing to the officer, for example, their valid passport.

 

The time period specified is 5 minutes if the request is made orally or 48 hours if the request is in writing. The period of 5 minutes is sufficient time to comply with the officer's request if the person is carrying with them their passport and visa at the time the request is made. Alternatively, the person can be given 48 hours to comply with the request to allow them the opportunity to obtain and provide the officer with the relevant documentation.

 

In the context of a field operation, this is a realistic timeframe, and DIMIA will be publishing appropriate supporting policy guidance for DIMIA field officers and developing and delivering comprehensive training on taking all necessary steps to identify a person located in the field before taking a decision under section 189 of the Act.

 

DIMIA have commenced the process of developing more comprehensive policy guidance and training programmes on establishing identity.  In May 2005 DIMIA established the National Identity Verification and Advice (NIVA) Unit in Central Office which acts as reference point to ensure that cases involving complex and potentially sensitive identity issues are identified as early as possible and handled in a consistent and expeditious manner.  DIMIA also issued a new Migration Series Instruction (MSI), MSI 406 -- Establishing identity in the field and in detention, which provides guidance on the minimum checks that must be undertaken in order to try to establish identity. 

 

DIMIA is also drafting an additional MSI that will provide detailed policy instructions on the operation of section 188 of the Act, including steps that DIMIA officers must take when a person indicates they are not carrying appropriate identity documents, in addition to providing guidance on when it would be appropriate for an officer to make an oral request or a written request under subsection 188(1) of the Act. The new MSI will also provide guidance on the circumstances when a personal identifier must be required under subsection 188(4) of the Act. The activation of this provision (such as taking a photo and checking it against DIMIA's biometrics database, or comparing a signature provided at the time with that on a credit card given as proof of identity and then checking those bio data details against DIMIA systems) will give compliance officers another avenue of inquiry before having to consider the question of detention.

 

The purpose of new regulation 3.19 is to prescribe the time periods in which a suspected non-citizen must comply with a request made by an officer under subsection 188(1) of the Act. Prescribing these time frames ensures that requests under subsection 188(1) are enforceable and prevents the officer from having to rely on the person providing evidence of their lawfulness or identity on a voluntary basis. 

This item also inserts new regulation 3.19A after new regulation 3.19 in Division 3.3 of Part 3 of the Principal Regulations.

 

Subsection 188(4) of the Act provides that an officer must require a person to provide personal identifiers, such as a photograph of the person's face, where the officer knows or reasonably suspects that the person is a non-citizen and prescribed circumstances exist. New regulation 3.19A prescribes these circumstances, under subsection 188(4) of the Act.

Paragraph 3.19A(a) specifies the circumstance where the person has refused or failed to comply with a request under subsection 188(1) of the Act, within the applicable prescribed time period under new regulation 3.19 or further time period under subsection 188(2) of the Act.

 

Paragraph 3.19A(b) specifies the circumstance where the person informs the officer that he or she refuses to, or is unable to, comply with a requirement under subsection 188(1) of the Act during the applicable prescribed or further time period.

 

 

Finally, paragraph 3.19A(c) specifies the circumstance where the person has provided evidence in order to comply with an officer's request under subsection 188(1) of the Act during the applicable prescribed or further time period, and the officer is not satisfied that the evidence provided is authentic or reliable.  An example of evidence of identity that may not be considered to be "reliable", for the purposes of new paragraph 3.19(c), would be a credit card, as it would not contain a photograph of the card owner.

 

The purpose of new regulation 3.19A is to provide officers with the additional authority to collect personal identifying information from known or reasonably suspected non-citizens who have failed or are unable to provide evidence of their identity or lawfulness under subsection 188(1) of the Act. Allowing officers to obtain certain personal identifiers such as a signature or photograph directly from these people improves the integrity of the overall identification process and ensures that the identity of such persons is more easily ascertained.

 

Schedule 3 -- Amendments relating to English language proficiency requirements for student visas

 

Part 1 -- Courses in the Australian Qualifications Framework

Item [1] --  Schedule 5A, sub-subparagraph 5A204(c)(ii)(B)

This item substitutes sub-subparagraph 5A204(c)(ii)(B) of Schedule 5A to the Principal Regulations with new sub-subparagraph 5A204(c)(ii)(B).

New sub-subparagraph 5A204(c)(ii)(B) continues to relate to Assessment Level 4 student visa applicants, who apply for a Subclass 570 (Independent ELICOS Sector) visa and who are in Australia at the time of applying. This amendment provides that these applicants are able to give evidence of their English language proficiency by having successfully completed a substantial part of an Australian Qualifications Framework course, other than a foundation course, at the Certificate IV level or higher, while holding a student visa. The course needs to have been conducted in English.

Prior to 1 July 2005, these applicants gave evidence of their English language proficiency by having studied towards a qualification from the Australian Qualifications Framework in a course at the Certificate IV level or higher, that was conducted in English. These applicants were therefore exempted from being required to undergo English language proficiency testing and give evidence of an International English Language Testing System (IELTS) score. However, since this provision did not specify a minimum period of study, it did not correctly reflect the intention of the exemption, which was to recognise the English proficiency developed by international students over the course of their tertiary studies.

This provision was amended on 1 July 2005 to provide that applicants could meet the requirements by having successfully completed a qualification from the Australian Qualifications Framework in a course at the Certificate IV level or higher, that was conducted in English.

However, this provision did not allow sufficient flexibility to deal with the impact on students who had been studying successfully in Australia, and who needed a further visa to complete their course. Students who had not successfully completed their whole course, and who required a further visa in order to complete their course, would have been required to undergo English language proficiency testing and provide an IELTS score as evidence of their English language proficiency. This failed to recognise the English language proficiency developed by applicants over the course of their study, and the importance of ongoing satisfactory academic performance.

The effect of this amendment is therefore to allow Assessment Level 4 student visa applicants, who have successfully completed a substantial part of a course, rather than the whole course, at the Certificate IV level or higher in the Australian Qualifications Framework, to be eligible for a further Subclass 570 (Independent ELICOS Sector) visa without having to provide an IELTS score. Foundation courses are excluded from this provision.

This provision was also amended on 1 July 2005 to clarify that foundation courses are to be considered separately from courses from the Australian Qualifications Framework at Certificate level IV or higher, when applicants give evidence of their English language proficiency. However, inadvertently, this amendment only applied to applications that had been made before 1 July 2005.

The effect of this part of the amendment is to clarify that, from 1 July 2005, foundation courses are to be considered separately from courses from the Australian Qualifications Framework at Certificate level IV or higher, when applicants give evidence of their English language proficiency.

This item also makes a minor technical amendment and replaces "in the English language" with "in English".

The following items make amendments with the same effect by substituting a new provision for the relevant provision:

Item [2] -- Schedule 5A, sub-subparagraph 5A404(d)(ii)(B).

Item [3] -- Schedule 5A, sub-subparagraph 5A407(d)(ii)(B)

Item [4] -- Schedule 5A, sub-subparagraph 5A504(1)(d)(ii)(B)

Item [5] -- Schedule 5A, sub-subparagraph 5A507(1)(d)(ii)(B)

Item [6] -- Schedule 5A, sub-subparagraph 5A604(2)(d)(ii)(B)

Item [7] -- Schedule 5A, sub-subparagraph 5A607(2)(d)(ii)(B)

Item [8] -- Schedule 5A, sub-subparagraph 5A704(d)(ii)(B)

Item [9] -- Schedule 5A, sub-subparagraph 5A707(d)(ii)(B)

 

Part 2 -- Foundation courses

Item [10] -- Schedule 5A, sub-subparagraph 5A204(c)(ii)(C)

This item substitutes sub-subparagraph 5A204(c)(ii)(C) with new sub-subparagraph 5A204(c)(ii)(C) in Schedule 5A to the Principal Regulations.

New sub-subparagraph 5A204(c)(ii)(C) relates to Assessment Level 4 student visa applicants who apply for a Subclass 570 (Independent ELICOS Sector) visa, and who are in Australia at the time of applying. This amendment provides an alternative requirement, so that these applicants are able to give evidence of their English language proficiency by having successfully completed a foundation course that was conducted in Australia and in English. If an applicant meets this requirement, then they are not required to undergo English language testing and provide an IELTS score.

The purpose of this amendment is to correct an inadvertent error in the provisions that commenced on 1 July 2005, which required that an applicant who had applied before that date could give evidence of their English language proficiency by having studied towards a foundation course that was conducted in Australia in English. This did not reflect the intention that the foundation course must have been successfully completed. However, the amendment applied only to applications that were made prior to 1 July 2005 and that were not finally determined before that date.

The effect of this amendment is therefore to implement the intention that Assessment Level 4 applicants, who had applied before, on or after 1 July 2005, and who had successfully completed a foundation course that was conducted in Australia and in English, are able to give evidence of their English language proficiency without having to provide an IELTS score.

The following items make amendments with the same effect by substituting a new provision for the relevant provision:

Item [11] -- Schedule 5A, sub-subparagraph 5A404(d)(ii)(C)

Item [12] -- Schedule 5A, sub-subparagraph 5A407(d)(ii)(C)

Item [13] -- Schedule 5A, sub-subparagraph 5A504(1)(d)(ii)(C)

Item [14] -- Schedule 5A, sub-subparagraph 5A507(1)(d)(ii)(C)

Item [15] -- Schedule 5A, sub-subparagraph 5A604(2)(d)(ii)(C)

Item [16] -- Schedule 5A, sub-subparagraph 5A607(2)(d)(ii)(C)

Item [17] -- Schedule 5A, sub-subparagraph 5A704(d)(ii)(C)

Item [18] -- Schedule 5A, sub-subparagraph 5A707(d)(ii)(C)

Schedule 4 -- Amendments relating to student visas

  Item [1] -- Schedule 2, paragraph 570.232(b)

 

This item substitutes paragraph 570.232(b) in Part 570 of Schedule 2 to the Principal Regulations with new paragraph 570.232(b).

 

New paragraph 570.232(b) continues to require that at the time of decision, an applicant for a Subclass 570 (Independent ELICOS Sector) visa is enrolled in, or has a current offer of enrolment in, the type of course that was specified for Subclass 570 visas, in accordance with regulation 1.40A.

 

Regulation 1.40A provides that the Minister must specify in a Gazette Notice the types of courses for each subclass of student visas, except for Subclass 576 (AusAID or Defence Sector) visas.

 

New paragraph 570.232(b) inserts an additional provision that the relevant Gazette Notice is the Gazette Notice in force at the time of application, not at the time of decision.

 

The purpose of this amendment is to ensure that a student visa applicant is not affected by the reassignment of a type of course to another subclass of student visa, which may occur after they have made their application.

The following items make amendments with the same effect by substituting a new provision for the relevant provision:

 

Item [2] -- Schedule 2, paragraph 571.232(b)

 

Item [3] -- Schedule 2, paragraph 572.231(b)

 

Item [4] -- Schedule 2, paragraph 573.231(b)

 

Item [5] -- Schedule 2, paragraph 574.231(b)

 

Item [6] -- Schedule 2, paragraph 575.231(b)

Schedule 5 -- Amendment relating to Student (Temporary)_(Class TU) visa

Item [1] -- Paragraph 2.43(2)(b)

This item substitutes paragraph 2.43(2)(b) in Part 2 of the Principal Regulations with new paragraph 2.43(2)(b).

New paragraph 2.43(2)(b) provides that the Minister must cancel a Student (Temporary) (Class TU) visa under subsection 116(3) of the Act where the Minister is satisfied that the visa holder has not complied with condition 8202 and where        non-compliance was not due to exceptional circumstances beyond the visa holder's control.  The new paragraph maintains the requirement that the Minister must cancel a student visa for breach of conditions 8104 and 8105.

The effect of this amendment is to allow for exceptional circumstances to be taken into consideration prior to cancelling a student visa for breach of condition 8202.  Condition 8202 provides that a student must:

o       remain in a registered course (or, if a secondary exchange student, remain enrolled in a full-time course of study or training); and

o       if their education provider keeps attendance records, attend at least 80 per cent of the contact hours scheduled for each term and semester of the course (or for the whole course if it runs for less than a semester); and

o       achieve an academic result which is considered by their institution to be satisfactory for each term and semester of the course (or for the whole course, if it runs for less than one semester).

Currently, when a student breaches condition 8202 the education provider has a legal obligation (under section 20 of the Education Services for Overseas Students Act 2000) to send the student a written notice which requires them to attend a DIMIA office within 28 days from the date of the notice.

If the student fails to attend a DIMIA office within 28 days of receiving the notice they face automatic visa cancellation under section 137J of the Act.

The only way to stop the visa from being automatically cancelled once a notice has been issued by the education provider is for the student to comply with the notice by attending a DIMIA office and explaining the breach.

If a student who has received a section 20 notice complies with the notice by attending a DIMIA office to explain, the automatic cancellation process stops.  However, their visa will (if the breach is made out) still be subject to cancellation for breach of condition 8202 under the mandatory cancellation power (section 116 of the Act).

If a student's visa is cancelled under the automatic cancellation provision (section 137J of the Act) then they can apply in writing to the Minister for revocation of the cancellation (section 137L of the Act).  The Minister may revoke the visa cancellation if satisfied that the student did not in fact breach the visa condition or the breach was due to exceptional circumstances beyond the visa holder's control.

This amendment ensures that students who comply with the law and attend a DIMIA office within 28 days from the date of a section 20 notice will receive similar treatment to students who apply for revocation after their visa has been cancelled under section 137J of the Act.

 

Schedule 6 -- Amendments relating to student visas

Item [1] -- Paragraph 2.07AF(5)(a)

This item substitutes the words "student visa" in paragraph 2.07AF(5)(a) of the Principal Regulations, with the words "Student (Temporary) (Class TU) visa".

This amendment ensures that a person seeking a Student Guardian visa is required to declare members of their family unit in their application under subregulations 2.07AF(3) and (4).

The definition of "student visa" under regulation 1.03 of the Principal Regulations does not include the Student Guardian visa. Therefore paragraph 2.07AF(5)(a) prior to amendment by this item may not have required a person seeking a Student Guardian visa to declare members of their family unit in their application under subregulations 2.07AF(3) and (4).

Item [2] -- Paragraph 2.07AF(5)(b)

This item substitutes paragraph 2.07AF(5)(b) of the Principal Regulations with a new paragraph 2.07AF(5)(b).

This amendment ensures that a person seeking a Student Guardian visa is required to declare members of their family unit in their application under subregulations 2.07AF(3) and (4).

The definition of "student visa" under regulation 1.03 does not include the Student Guardian visa. Therefore paragraph 2.07AF(5)(b) prior to amendment by this item may not have required a person seeking a Student Guardian visa to declare members of their family unit under subregulation 2.07AF(3) and (4).

Item [3] -- Subregulation 2.07AF(5), note

This item substitutes the words "student visa" in the note to subregulation 2.07AF(5) of the Principal Regulations with the words "Student (Temporary) (Class TU) visa".

This item makes a technical amendment to correct an inconsistency in the Principal Regulations.

The note to subregulation 2.07AF(5) refers to subregulation 1.12(2) which defines member of the family unit of an applicant for a "Student (Temporary) (Class TU) visa", not a "student visa".

Item [4] -- Schedule 1, paragraph 1222(3)(e)

This item substitutes the words "student visa" in paragraph 1222(3)(e) of Schedule 1 to the Principal Regulations with the words "Student (Temporary) (Class TU) visa".

This amendment ensures that a person claiming to be a member of the family unit of an applicant seeking a Student Guardian visa must have been included by the applicant in their application or information given under subregulation 2.07AF(3) or (4). The exception to this is if the person claiming to be a member of the family unit became such a member after the decision to grant the visa to the applicant was made.

The definition of "student visa" under regulation 1.03 does not include the Student Guardian visa. Therefore paragraph 1222(3)(e) of Schedule 1 to the Principal Regulations prior to amendment by this item may not have required a person claiming to be a member of the family unit of an applicant seeking a Student Guardian visa to have been included in the applicant's application or information given under subregulation 2.07AF(3) or (4).

 

Schedule 7 -- Amendments relating to remaining relatives

Item [1] -- Regulation 1.15

This item substitutes a new regulation 1.15 in Part 1 of the Principal Regulations.

New regulation 1.15 inserts a new definition of the term "remaining relative" in the Principal Regulations. The term "remaining relative" is used in the eligibility criteria to be satisfied by applicants for Subclasses 115 and 835 (Remaining Relative) visas.

New subregulation 1.15(1) provides that an applicant is a remaining relative of a person who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen, if that person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant. In addition, the applicant, together with their spouse (if any), must have no near relatives except for those near relatives who are Australian citizens, or Australian permanent residents or eligible New Zealand citizens, and who are usually resident in Australia.

New paragraph 1.15(1)(d) continues the requirement of the previous paragraph 1.15(1)(e), namely, if the applicant is a child under 18 years who has been adopted overseas, the adoptive parent must have been residing overseas for a period of at least 12 months before the visa application is made.

 

New subregulation 1.15(2) defines the term "near relative" as used in new subregulation 1.15(1). The term encompasses the same family relationships as "overseas near relative" as defined in subregulation 1.15(2) of the Principal Regulations.

 

New subregulation 1.15(2) provides that a near relative is a person who is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse.

 

In addition, a person who is a child or a step-child of the applicant, or of the applicant's spouse, who has turned 18 and is not a dependent child of the applicant or the applicant's spouse, or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant's spouse, is also a near relative.

 

The purpose of this amendment is to enable Australian citizens, Australian permanent residents and eligible New Zealand citizens to sponsor a remaining relative who would otherwise be left in an isolated situation overseas.

 

Currently an applicant may apply for a Remaining Relative visa if they, together with their spouse, do not have any overseas near relative residing in the same country as themselves, do not have more than three overseas near relatives and have not had contact with those overseas near relatives within a reasonable period before they applied for the visa.

 

The effect of this amendment is to restrict eligibility to those applicants who, together with their spouse, have no other near relatives, other than those who are Australian citizens, Australian permanent residents or eligible New Zealand citizens, and who are usually resident in Australia. This will address integrity issues associated with the visa category and ensure that only applicants left in genuinely isolated situations overseas will be eligible.

The amendment omits subregulation 1.15(3) of the Principal Regulations. This provision is no longer relevant as applicants are not permitted to have any near relatives resident in any country outside of Australia.

 

Item [2] -- Schedule 2, clause 835.111, note

 

This item substitutes the Note following clause 835.111 in Schedule 2 to the Principal Regulations with a new Note. The new Note retains the current definitions and adds a reference to the definition of spouse in regulation 1.15A.

 

The purpose of this amendment is to include a reference to the definition of spouse for clarification for Subclass 835 and to ensure consistency between Subclasses 115 and 835.

 

Schedule 8 -- Amendments relating to New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas

 

Item [1] Schedule 2, subparagraph 855.212(4)(a)(viii)

This item makes a technical amendment to subparagraph 855.212(4)(a)(viii) of Schedule 2 to the Principal Regulations.

This amendment allows an additional visa to be included in the list of visa classes set out in paragraph 855.212(4)(a) and is consequential to amendments in Item [2] of Schedule 8 to the Regulations.

Item [2] Schedule 2, after subparagraph 855.212(4)(a)(viii)

This item inserts a new subparagraph 855.212(4)(a)(ix) after subparagraph 855.212(4)(a)(viii) of Schedule 2 to the Principal Regulations.

The amendment adds the New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa to the list of qualifying visas set out in paragraph 855.212(4)(a).

The effect of this amendment is to allow a New Zealand Citizen (Family Relationship) (Temporary)(Class UP) visa holder who satisfies the other relevant Schedule 2 criteria, to be granted a Subclass 855 Labour Agreement visa.

The purpose of this amendment is to ensure that New Zealand citizens who hold a Special Category (Temporary)(Class TY) visa and their dependent family members who are not themselves New Zealand citizens, and therefore hold a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa, have the same access to the employer sponsored visa program.

Item [3] Schedule 2, subparagraph 856.212(4)(a)(viii)

This item makes a technical amendment to subparagraph 856.212(4)(a)(viii) of Schedule 2 to the Principal Regulations.

This amendment allows an additional visa to be included in the list of visa classes set out in paragraph 856.212(4)(a) and is consequential to amendments in Item [4] of Schedule 8 to these Regulations.

 

Item [4] Schedule 2, after subparagraph 856.212(4)(a)(viii)

 

This item inserts a new subparagraph 856.212(4)(a)(ix) after subparagraph 856.212(4)(a)(viii) of Schedule 2 to the Principal Regulations. The amendment adds the New Zealand Citizen (Family Relationship) (Temporary)(Class UP) visa to the list of qualifying visas set out in paragraph 856.212(4)(a).

 

The effect of this amendment is to allow a New Zealand Citizen (Family Relationship) (Temporary)(Class UP) visa holder who satisfies the other relevant Schedule 2 criteria, to be granted a Subclass 856 Employer Nomination Scheme visa.

The purpose of this amendment is to ensure that New Zealand citizens who hold a Special Category (Temporary)(Class TY) visa and their dependent family members who are not themselves New Zealand citizens, and therefore hold a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa, have the same access to the employer sponsored visa program.

Item [5] Schedule 2, subparagraph 857.212(4)(a)(ix)

This item makes a technical amendment to subparagraph 857.212(4)(a)(ix) of Schedule 2 to the Principal Regulations.

This amendment allows an additional visa to be included in the list of visa classes set out in paragraph 857.212(4)(a) and is consequential to amendments in Item [6] of Schedule 8 to these Regulations.

Item [6] Schedule 2, after subparagraph 857.212(4)(a)(ix)

This item inserts a new subparagraph 857.212(4)(a)(x) after subparagraph 857.212(4)(a)(ix) of Schedule 2 to the Principal Regulations.

The amendment adds the New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa to the list of qualifying visas set out in paragraph 857.212(4)(a).

The effect of this amendment is to allow a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa holder who satisfies the other relevant Schedule 2 criteria, to be granted a Subclass 857 Regional Sponsored Migration Scheme visa.

The purpose of this amendment is to ensure that New Zealand citizens who hold a Special Category (Temporary)(Class TY) visa and their dependent family members who are not themselves New Zealand citizens, and therefore hold a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) visa, have the same access to the employer sponsored visa program.

Schedule 9 -- Amendments relating to medical and hospital expenses

 

Item [1] -- Paragraph 1.20CB(1)(k)

 

This item substitutes paragraph 1.20CB(1)(k) in Part 1 of the Principal Regulations with new paragraph 1.20CB(1)(k).

 

The new paragraph 1.20CB(1)(k) requires a standard business sponsor to give an undertaking to pay all medical or hospital expenses for a sponsored person arising from treatment administered in a public hospital (other than where those expenses are met by health insurance or reciprocal health care arrangements). 

The purpose of this amendment is to clarify and limit the scope of the sponsor's obligation under the medical and hospital expenses undertaking.  New sponsors will no longer be required to pay all medical or hospital expenses incurred by the sponsored person.  The sponsor will only be liable for the sponsored person's medical or hospital expenses that arise from treatment administered in a public hospital.   

The following items make amendments with the same effect by substituting a new provision for the relevant provision:

 

Item [2] -- Paragraph 1.20P(1)(l)

 

Item [3] -- Paragraph 1.20UF(e)

Schedule 10 -- Amendment relating to employer sponsored applicants

Item [1] -- Subregulation 2.08C(3)

This item substitutes subregulation 2.08C(3) in Part 2 of the Principal Regulations with new subregulation 2.08C(3).

New subregulation 2.08C(3) includes a reference to an appointment approved under subregulation 5.19(2) of the Principal Regulations, in addition to the existing reference to an appointment approved under subregulation 5.19(4).

Previously under subregulation 2.08C(3), a person applying for an Independent (Migrant) (Class AT) visa, a Skilled -- Independent (Migrant) (Class BN) visa or a Skill Matching (Migrant) (Class BR) visa and who is nominated by an employer for an approved appointment under subregulation 5.19(4), which relates to the Regional Skilled Migration Scheme (RSMS), is deemed to have made an application for an Employer Nomination (Migrant) (Class AN) visa without having to pay an additional visa application charge.

The effect of this amendment is to extend provision for a deemed application for an Employer Nomination (Migrant) (Class AN) visa to relevant applicants who are, or become, the subject of an approved appointment under subregulation 5.19(2) relating to the Employer Nomination Scheme (ENS).

This amendment implements the Government's intention to facilitate the availability of similarly qualified skilled applicants to employers anywhere in Australia under the ENS, rather than limiting availability to employers located in regional areas, under the RSMS.