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MIGRATION AMENDMENT REGULATIONS 2008 (NO. 7) (SLI NO 205 OF 2008)

EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 205

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2008 (No. 7)

 

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 of the Act set out in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (“the Principal Regulations”) in relation to Subclass 417 (Working Holiday) and Subclass 462 (Work and Holiday) visas; new Visitor (Class TV) and Subclass 651 (eVisitor) visas; Visa Application Charges; the Maritime Crew visa (MCV) and the Subclass 485 (Skilled (Graduate)) visa.

 

In particular, the Regulations include five Schedules that:

 

 

 

 


 

o       ensure that evidence of language ability for a Subclass 485 (Skilled (Graduate)) visa is provided at time of application, removing the option to provide evidence of having booked an English language test.

 

Details of the Regulations are set out in Attachment B.

 

The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.

 

The Department of Foreign Affairs and Trade and the Department of Resources, Energy and Tourism were consulted in relation to the amendments contained in Schedule 1 to create the Visitor (Class TV) and Subclass 651 (eVisitor) visas.

 

No consultation was necessary for the amendments in Schedule 2.

 

No consultation was necessary for the amendments in Schedule 3.

 

Shipping Australia Limited, the peak industry body representing ship owners and shipping agents, was consulted on the general direction behind the proposed amendments and specific information was provided concerning Public Interest Criterion (PIC) 4004 and debt recovery in relation to the amendments in Schedule 4.

 

No consultation was necessary for the amendments in Schedule 5.

 

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


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:

 

·        section 29 of the Act, which deals with visas, in particular:

 

o       subsection 29(2) of the Act, which provides that a visa to travel to, enter and remain in Australia may be one to travel to and enter Australia during a prescribed or specified period;

 

o       subsection 29(3) of the Act, which provides that a visa to travel to, enter and remain in Australia may be one to remain in Australia during a prescribed or specified period and if the holders leaves Australia during a prescribed or specified period, to travel to and re-enter it during a prescribed or specified period.

 

·        section 31 of the Act, which deals with classes of visa, in particular:

 

o       subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas;

 

o       subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

 

o       subsection 31(4) of the Act, which 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;

 

o       subsection 31(5) of the Act, which provides that the regulations specify that a visa is a visa of a particular 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 40(2) of the Act, which provides that without limiting subsection 40(1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

o       is outside Australia; or

o       is in immigration clearance; or

o       has been refused immigration clearance and has not subsequently been immigration cleared; or

o       is in the migration zone and, on last entering Australia, was immigration cleared or bypassed immigration clearance and had not subsequently been immigration cleared;

 

·        subsection 45A of the Act, which provides that the regulations may prescribe that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;

 

·        subsection 45B(1) of the Act, which provides that the regulations may prescribe the amount that is the amount of a visa application charge, not exceeding the visa application charge limit;

 

·        subsection 45B(2) of the Act, which provides that the amount of visa application charge 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:

 

o       subsection 46(1) of the Act, which provides that an application for a visa is valid, if and only if, it is for a visa of a class specified in the application, it satisfies the criteria and requirements prescribed under section 46, any visa application charge that the regulations required to be paid at the time when the application is made has been paid, any fees payable in respect of it under the regulations have been paid, and the application is not prevented by section 48, 48A, 91E, 91K, 91P, 161, 164D, 195 or 501E of the Act;

 

o       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;

 

o       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

 

o       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; and

 

·        paragraph 116(1)(g) of the Act, which provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder; and

 

·        paragraph 347(2)(d) of the Act, which provides that the regulations may prescribe those persons eligible to apply to the Migration Review Tribunal (MRT) for review of a decision that is reviewable by the MRT for reason that is prescribed under subsection 338(9) of the Act.

 

 


ATTACHMENT B

 

Details of the Migration Amendment Regulations 2008 (No. 7)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the

Migration Amendment Regulations 2008 (No. 7).

 

Regulation 2 – Commencement

 

This regulation provides that these regulations commence on 27 October 2008.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

 

Subregulation 3(1) provides that Schedule 1 amends the

Migration Regulations 1994 (the Principal Regulations).

 

Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to an application for a visa made on or after 27 October 2008.

 

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

 

Subregulation 4(1) provides that Schedule 2 amends the Principal Regulations.

 

Subregulation 4(2) provides that the amendments made by items [1], [2], [16] and [17] of Schedule 2 apply in relation to an application for a Subclass 462 (Work and Holiday) visa made on or after 27 October 2008.

 

Subregulation 4(3) provides that the amendments made by items [3] to [15] of Schedule 2 apply in relation to an application for a Subclass 417 (Working Holiday) visa made on or after 27 October 2008.

 

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

 

Subregulation 5(1) provides that Schedule 3 amends the Migration Regulations 1994.

 

Subregulation 5(2) provides that the amendments made by Schedule 3 apply in relation to applications made on or after 27 October 2008.

 

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

 

Subregulation 6(1) provides that Schedule 4 amends the Migration Regulations 1994.

 

Paragraph 6(2)(a) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 27 October 2008.

 

Paragraph 6(2)(b) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made on or after 27 October 2008.

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

 

Subregulation 7(1) provides that Schedule 5 amends the Migration Regulations 1994.

 

Subregulation 7(2) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made on or after 27 October 2008.

 

Schedule 1 – Amendments relating to Visitor (Class TV) and Subclass 651 (eVisitor) visas

Item [1] – Regulation 1.03, after the definition of ETA-eligible passport

This item inserts the definition of “eVisitor eligible passport” in regulation 1.03 of Division 1.2 of Part 1 of the Migration Regulations 1994 (“the Principal Regulations”).

The new definition provides that “eVisitor eligible passport” has the meaning given by regulation 1.11C (see item [2] that inserts new regulation 1.11C).

Item [2] – After regulation 1.11B

This item inserts new regulation 1.11C in Division 1.2 of Part 1 of the Principal Regulations.

This item provides that a passport is an “eVisitor eligible passport” if it is a valid passport of a kind specified by the Minister in an instrument in writing for paragraph 1.11C(a) and the conditions (if any) specified by the instrument are satisfied.

It is envisaged that “eVisitor eligible passport” will initially be defined to include valid citizen passports from European Union countries and from European countries currently defined as ETA eligible passports.

The definition of “eVisitor eligible passport” determines who may make a valid application for an eVisitor visa, and who is eligible for the eVisitor visa, under new item 1218AA in Schedule 1 to the Principal Regulations (see item [15]) and new
Part 651 in Schedule 2 to the Principal Regulations (see item [63]).

Item [3] – Paragraph 2.07AB(1)(c)

This item inserts “or email” after “facsimile message” in paragraph 2.07AB(1)(c) of Division 2.2 of Part 2 of the Principal Regulations.

This amendment ensures that an application for an Electronic Travel Authority (Class UD) visa that is made by written communication using an email in Australia (except in immigration clearance), or outside Australia, is taken to have been validly made.

This item is consequential to item [4] below, which provides that despite paragraph 2.07AB(1)(d), an application made by an eVisitor eligible passport holder is taken not to have been made validly if it is made by electronic transmission using a computer.

Item [3] ensures that the phrase “electronic transmission using a computer” as used in 2.07AB(1)(d) does not exclude applications made by written communication, including an email. An applicant who holds an eVisitor eligible passport can still make a valid application under 2.07AB(1)(c) if the application for an Electronic Travel Authority (Class UD) visa is made in Australia (except in immigration clearance), or outside Australia, by written communication using an email and provides his or her passport details to a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia or an office of an agent mentioned in paragraph 2.07AB(3)(b).

Item [4] – After subregulation 2.07AB(3)

This item inserts new subregulation 2.07AB(4) in Division 2.2 of Part 2 of the Principal Regulations.

This item provides that for sections 45 and 46 of the Act and despite paragraph 2.07AB(1)(d), an application for an Electronic Travel Authority (Class UD) visa that is made by an eVisitor eligible passport holder is taken not to have been validly made if it is made by electronic transmission using a computer.

This item provides that an applicant who holds an eVisitor eligible passport cannot make an Electronic Travel Authority (Class UD) visa by electronic application using the form www.eta.immi.gov.au. Instead these applicants may use form 1362 (Internet) prescribed in new subitem 1218AA(1) (see item 14) and make an application for the new Visitor (Class TV) visa. This ensures that a single internet platform is used for eVisitor eligible passport applicants. An eVisitor eligible passport holder that also holds an ETA eligible passport may still however make a valid application for an Electronic Travel Authority (Class UD) visa if the applicant makes the application in accordance with the other methods prescribed in regulation 2.07AB (except paragraph 2.07AB(1)(d)).

Item [5] – Subregulation 2.13(6)

This item inserts the words “(other than an applicant for a Visitor (Class TV) visa)” in subregulation 2.13(6) of Division 2.3 of Part 2 of the Principal Regulations.

This item excludes applicants for a Visitor (Class TV) visa from subregulation 2.13(6). Subregulation 2.13(6) provides that where an applicant or interested person is required or permitted to produce a document in connection with a visa application, this can only be in the form of electronic communication under certain circumstances (i.e. the document being provided is in a class of documents specified by a Gazette Notice, or the Minister has permitted the document to be sent by electronic communication).

The purpose of this amendment is to make it clear that subregulation 2.13(6) does not apply to applicants for Visitor (Class TV). This item is consequential to item [6] below which introduces a new subregulation 2.13(8) which deals with how an applicant for a Visitor (Class TV) visa is to communicate with the Minister about his or her application.

New subregulation 2.13(8) provides that an applicant for a Visitor (Class TV) visa must communicate with the Minister about the application by electronic communication or in another form permitted by the Minister.

Item [6] – After subregulation 2.13(7) and before the note

This item inserts new subregulation 2.13(8) in Part 2 of Division 2.3 of the Principal Regulations.

This item provides that an applicant must communicate electronically with the Minister if the communication relates to an application for a Visitor (Class TV) visa, unless the Minister permits the applicant to communicate in another form. This new subregulation ensures that communication with the Minister in relation to an application for a Visitor (Class TV) visa will occur through the online query application status facility or by email, to enable the application to be assessed as quickly as possible.

Regulation 2.13 is prescribed under subsection 52(1) of the Migration Act 1958 (“the Act”) which provides that a visa applicant or interested person must communicate with the Minister in the prescribed way. Subsection 52(3) of the Act provides that if the applicant or interested person purports to communicate anything to the Minister in a way that is not prescribed (under regulation 2.13), the communication is taken to be received by the Minister only if he or she in fact receives it. This means that if an applicant for a Visitor (Class TV) visa communicates with the Minister in a way that is not prescribed in new subregulation 2.13(8), the communication is only taken to be received if the Minister in fact receives it.

Item [7] – Paragraph 2.15(1)(c)

This item substitutes previous paragraph 2.15(1)(c) with new paragraphs 2.15(1)(c) and 2.15(1)(d) in Division 2.3 of Part 2 of the Principal Regulations.

New paragraph 2.15(1)(c) excludes applications made by an applicant for a Visitor (Class TV) visa from the prescribed periods in this paragraph. This paragraph provides that for an application made by an applicant (other than an applicant for a Visitor (Class TV) visa) who is not in Australia, the prescribed period for giving additional information or comments on an application in response to an invitation is 28 days after the applicant is notified of the invitation; or if the Minister so decides in the circumstances of the case – 70 days after the applicant is notified of the invitation.

New paragraph 2.15(1)(d) provides that for an application made by an applicant for a Visitor (Class TV) visa, the prescribed period for giving additional information or comments on an application in response to an invitation is 7 days after the applicant is notified of the invitation; or if the Minister so decides in the circumstances of the case – 70 days after the applicant is notified of the invitation.

The prescribed period of 7 days under paragraph 2.15(1)(d) for giving additional information or comments on an application for a Visitor (Class TV) visa ensures that applications for this visa are dealt with fairly, efficiently and quickly.

 

Item [8] – Paragraph 2.43(1)(e)

This item substitutes paragraph 2.43(1)(e) in Division 2.9 of Part 2 of the Principal Regulations.

Substituted paragraph 2.43(1)(e) is substantially the same as omitted paragraph 2.43(1)(e) however it inserts new subparagraph 2.43(1)(e)(iv) to provide that paragraph 2.43(1)(e) also applies to the holder of a Visitor (Class TV) visa who is under the age of 18 years, and renumbers subparagraphs 2.43(1)(e)(v) and (vi).

The amendment provides that, in the case of a Visitor (Class TV) visa holder, the Minister may, for the purposes of paragraph 116(1)(g) of the Act, cancel a visa where the visa holder is under 18 and one of the following applies:

-         the law of the visa holder’s home country did not permit their removal and at least one of the persons who could lawfully determine where they should live did not consent to the grant of the visa, or

-         the grant of the visa was inconsistent with an Australian child order in force in relation to the visa holder.

This provision allows cancellation of a visa granted to a minor where the child’s presence in Australia is in contravention of Australia’s obligations under The Hague Convention on the Civil Aspects of International Child Abduction, as the assessment of eligibility for a Subclass 651 (eVisitor) does not include consideration of Public Interest Criterion (PIC) 4015. PIC 4015 provides for similar requirements to those in new paragraph 2.43(1)(e).

Item [9] – Sub-subparagraph 2.43(1)(f)(iii)(B)

This item omits “guardian;” and inserts “guardian; or” into sub-subparagraph 2.43(1)(f)(iii)(B) in Division 2.9 of Part 2 of the Principal Regulations.

This amends the punctuation in sub-subparagraph 2.43(1)(f)(iii)(B) by adding the word “or” to allow new subparagraph 2.43(1)(f)(iv) to be inserted (see item [10]).

Item [10] – After subparagraph 2.43(1)(f)(iii)

This item inserts new subparagraph 2.43(1)(f)(iv) in Division 2.9 of Part 2 of the Principal Regulations.

The new subparagraph provides in effect that, in the case of a Visitor (Class TV) visa holder, the Minister may for the purposes of paragraph 116(1)(g) of the Act, cancel a visa where the holder:

-         is under the age of 18 years and is not accompanied by his or her parent or guardian; and

-         does not have adequate funds, or adequate arrangements have not been made, for the holder’s maintenance, support and general welfare during the holder’s proposed visit in Australia.

This provision allows cancellation of a visa granted to a minor where the financial or other welfare arrangements for the child are inadequate. This cancellation power has been extended to the Visitor (Class TV) to protect the best interests of the child, as the assessment of eligibility for a Subclass 651 (eVisitor) does not include consideration of Public Interest Criterion (PIC) 4016. PIC 4016 provides that the Minister must be satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the additional applicant.

Item [11] – After paragraph 2.43(1)(k)

This item inserts new paragraph 2.43(1)(ka) in Division 2.9 of Part 2 of the Principal Regulations.

The new paragraph 2.43(1)(ka) provides in effect that, in the case of a Subclass 651 (eVisitor) visa holder, the Minister may for the purposes of paragraph 116(1)(g) of the Act, cancel a visa if he or she is satisfied that despite the grant of the visa, the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted.

Existing paragraphs 2.43(1)(i) and 2.43(1)(k) have not been amended, because under paragraph 2.43(1)(i), the Minister must be satisfied that the visa holder did not have, at the time of grant of the visa, or has ceased to have, an intention to stay in Australia for business purposes. Paragraph 2.43(1)(i) also separately provides for the situation where the applicant has ceased to have an intention to stay in Australia for tourism purposes. A Subclass 651 (eVisitor) visa holder however may have been granted the visa where the Minister was satisfied the applicant had either an intention to stay in or visit Australia temporarily for tourism or business purposes.

New paragraph 2.43(1)(ka) has therefore been inserted into regulation 2.43 to provide that a Subclass 651 (eVisitor) visa may be cancelled where despite the grant of the visa, the Minister is satisfied that the visa holder ceased to have an intention to stay in or visit Australia temporarily for the tourism or business purposes for which the visa was granted.

Item [12] – Subparagraph 3.03(3)(f)(ii)

This item omits “officer.” and inserts “officer; and” into subparagraph 3.03(3)(f)(ii) of Division 3.1 of Part 3 the Principal Regulations.

This amends the punctuation in subparagraph 3.03(3)(f)(ii) by adding the word “or” to allow new paragraph 3.03(3)(f) to be inserted (see item [13]).

Item [13] – After paragraph 3.03(3)(f) and before the note

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

New paragraph 3.03(3)(g) provides in effect, that for subsection 166(3) of the Act, a non-citizen holding a Visitor (Class TV) visa, who is required to comply with section 166 of the Act, must present evidence of their identity as specified in Part 1 of Schedule 9, to a clearance authority, and must also provide a completed passenger card to a clearance authority. Section 166 of the Act requires certain people to be immigration cleared.

Item [84] amends Part 1 of Schedule 9 to provide that a person holding a Visitor (Class TV) visa must present, as evidence of their identity, a passport that is an eVisitor eligible passport in relation to the Subclass of the Visitor (Class TV) visa held by the person as well as a passenger card. See item [84] for more detail in relation to Part 1 of Schedule 9.

Item [14] – Schedule 1, paragraph 1218(3)(e)

This item substitutes a new paragraph 1218(3)(e) in Schedule 1 to the Principal Regulations.

The new paragraph is substantially the same as the omitted paragraph. The omitted paragraph provides that an application may be made on form 601E if, and only if, the applicant is the holder of a Subclass 676 (Tourist) visa or a Subclass 976 (Electronic Travel Authority (Visitor)). Substituted paragraph 1218(3)(e) also includes the Subclass 651 (eVisitor) visa as a visa an applicant may hold to apply for a Tourist (Class TR) visa on form 601E.

An application for a Subclass 651 (eVisitor) visa cannot be made in Australia (see item [15]). This amendment therefore provides that applicants who hold a Subclass 651 (eVisitor) visa in Australia may be able to extend their stay in Australia by applying for a Subclass 676 (Tourist) visa electronically, in addition to the other methods of lodging an application for the Subclass 676 visa.

Item [15] – Schedule 1, after subdivision 1218

This item inserts new item 1218AA in Schedule 1 to the Principal Regulations.

This item creates the new Visitor (Class TV) visa and sets out the criteria and requirements for making a valid application, for the purposes of section 46 of the Act, for a visa under this class. An application for a new Visitor (Class TV) visa that is not made in accordance with item 1218AA is not valid and, in accordance with subsection 47(3) of the Act, cannot be considered by the Minister.

Subitem 1218AA(1) provides that an application for a Visitor (Class TV) visa must be made on Form 1362 (Internet). This means that the visa can only be applied for using the prescribed Internet Form 1362.

Subitem 1218AA(2) provides that there is no visa application charge for a Visitor (Class TV) visa.

Subitem 1218AA(3) sets out the other requirements for making a valid Visitor (Class TV) visa application. Paragraph 1218AA(3)(a) provides that an applicant for a Visitor (Class TV) visa must be outside Australia at the time of application. Paragraph 1218AA(3)(b) provides that an applicant must hold an eVisitor eligible passport at the time of application .

Subitem 1218AA(4) prescribes the only subclass under the Visitor (Class TV) class which is Subclass 651 (eVisitor).

Items [16]-[21], [23]-[30] and [32]-[39]

These items amend Parts 411, 415, 418, 419, 420, 421, 422, 423, 427, 428 and 457 of Schedule 2 to the Principal Regulations to provide that the holder of a Visitor (Class TV) visa can satisfy the time of application criteria for the following subclasses if the application is made in the migration zone:

These amendments ensure a Subclass 651 (eVisitor) holder can easily apply to extend their stay in Australia where they meet the additional criteria for the grant of these temporary work and cultural visas.

Item [22] – Schedule 2, clause 418.231

This item inserts “Visitor (Class TV)” in clause 418.231 of Part 418 of Schedule 2 to the Principal Regulations.

The amendment to clause 418.231 provides in effect that if the application for the Subclass 418 (Educational) visa is made in the migration zone and at the time of application the applicant held a Visitor (Class TV) visa, the applicant must be sponsored by an educational or research institution and the Minister must be satisfied at the time of decision that a person in Australia is not suitable for the position.

This ensures that Subclass 651 (eVisitor) holders applying for a Subclass 418 (Educational) visa while in Australia are required to meet the same requirements as holders of other visitor visas.

Item [31] – Schedule 2, clause 422.227B

This item inserts “Visitor (Class TV)” in clause 422.227B of Part 422 of Schedule 2 to the Principal Regulations.

The amendment to clause 422.227B provides in effect that if the application for the Subclass 422 (Medical Practitioner) visa is made in the migration zone and at the time of application the applicant held a Visitor (Class TV) visa, the applicant must be sponsored by the applicant’s intended employer and the Minister must be satisfied at the time of decision that a person in Australia is not suitable for the position.

This ensures that Subclass 651 (eVisitor) holders applying for a Subclass 422 (Medical Practitioner) visa while in Australia are required to meet the same requirements as holders of other visitor visas.

Items [40]-[62] – Schedule 2, Parts 570, 571, 572, 573, 574, 575, 576 and 580

These items amend Parts 570, 571, 572, 573, 574, 575, 576 and 580 of Schedule 2 to the Principal Regulations to insert “Visitor (Class TV)” into new provisions under the criteria to be satisfied at time of application and time of decision in Schedule 2 for the following Subclasses:

These amendments provide in effect that the holder of a Visitor (Class TV) visa may be eligible to be granted the above visa subclasses.

These amendments ensure a Subclass 651 (eVisitor) holder can easily extend their stay in Australia by applying for one of the above visas, where their intention is to study, or they are a member of the family unit of a person whose intention is to study.

Item [63] – Schedule 2, after Part 580

This item inserts new Part 651 into Schedule 2 to the Principal Regulations.

The new Part sets out the criteria to be satisfied for the grant of a Subclass 651 (eVisitor) visa, circumstances applicable to grant, when the visa is in effect, conditions to be imposed on the visa, and the way of giving evidence for the new Subclass 651 (eVisitor) visa.

 

 

Interpretation

New Division 651.1 provides for interpretation relevant to Subclass 561 (eVisitor). This new Division includes a note advising that the term “eVisitor eligible passport” is defined in regulation 1.11C. New regulation 1.11C provides that a passport is an “eVisitor eligible passport” if it is a valid passport of a kind specified by the Minister in an instrument in writing for paragraph 1.11C(a) and the conditions (if any) specified by the instrument are satisfied (see item [2]). The note further advises that there are no interpretation provisions specific to Part 651.

Primary criteria

New Division 651.2 provides the primary criteria for the grant of a Subclass 651 (eVisitor) visa and includes a note that provides all applicants must satisfy the primary criteria.

New subdivision 651.21 provides that there are no criteria to be satisfied at the time of application for Subclass 651 (eVisitor).

New subdivision 651.22 provides the criteria to be satisfied at the time of decision for a Subclass 651 (eVisitor) application.

New clause 651.221 provides that the applicant must hold an eVisitor eligible passport at the time of decision. As noted above, the term “eVisitor eligible passport” is defined in regulation 1.11C. New regulation 1.11C provides that a passport is an “eVisitor eligible passport” if it is a valid passport of a kind specified by the Minister in an instrument in writing for paragraph 1.11C(a) and the conditions (if any) specified by the instrument are satisfied. (See item [2]).

New clause 651.222 provides that the applicant must satisfy the Minister at the time of decision that the applicant has a genuine intention to visit Australia temporarily as a tourist or for business purposes.

This criterion is intended to ensure that only those seeking to use the temporary Subclass 651 (eVisitor) visa for the intended purpose of facilitating short stays in Australia, are eligible to be granted this visa. An assessment of whether an applicant has a genuine intention to visit temporarily will include consideration of the applicant’s travel history, their individual circumstances and any political or social factors in their home country that may mean the applicant has little incentive to return at the end of their proposed stay in Australia. Genuine tourists will generally be visiting Australia to see family or friends or have a holiday. Genuine business visitors will generally be proposing to conduct business meetings or attend a conference which is relevant to their current line of work.

New clause 651.223 provides that the applicant must satisfy the following public interest criteria set out in Schedule 4 to the Principal Regulations:

·        4002 (applicant is not assessed by ASIO to pose a security risk to Australia)

·        4003 (applicant is not determined by the Foreign Minister to be a person whose presence in Australia is contrary to Australia’s foreign policy interests or whose presence in Australia is directly or indirectly associated with proliferation of weapons of mass destruction);

·        4004 (applicant does not have outstanding debts to the Commonwealth, unless appropriate arrangements have been made for payment);

·        4005 (applicant is free from tuberculosis, or any other disease or condition that is a threat to public health in Australia or a danger to the Australian community, or a disease or condition that will result in significant cost to the Australian community);

·        4013 (within the last 3 years, a visa previously held by the applicant has not been cancelled); and

·        4014 (within the last 3 years, applicant did not leave Australia as an unlawful non-citizen or as the holder of certain bridging visas).

New clause 651.224 provides that if the applicant has previously been in Australia, the applicant must satisfy the following special return criteria set out in Schedule 5 to the Principal Regulations:

·        5001 (applicant has not been deported on criminal or security grounds or had a previous visa cancelled on character grounds); and

·        5002 (applicant has not been removed from Australia within last 12 months).

Secondary criteria

New Division 651.3 provides that there are no secondary criteria. The note at the beginning of the clause advises that all applicants must satisfy the primary criteria.

Circumstances applicable to grant

New Division 651.4 provides the circumstances applicable to the grant of a Subclass 651 (eVisitor) visa. New clause 651.411 provides that the applicant must be outside Australia at the time of the grant.

When visa is in effect

New Division 651.5 provides for when a Subclass 651 (eVisitor) visa is in effect.

New clause 651.511 provides that a Subclass 651 (eVisitor) visa is a temporary visa permitting the holder to travel to and enter Australia on multiple occasions within 12 months from the date of the grant of the visa, and on each occasion, to remain in Australia for a period not exceeding 3 months from the date of entry into Australia.

 

 

Conditions

New Division 651.6 provides for the specified conditions to be imposed on a Subclass 651 (eVisitor) visa.

New clause 651.611 provides that conditions 8201, 8527 and 8528 must be imposed on the holder of a Subclass 651(eVisitor) visa.

New clause 651.612 provides that if the applicant intends to visit Australia temporarily as a tourist, condition 8101 must be imposed.

This condition is imposed only on an applicant for a Subclass 651 (eVisitor) visa who at time of decision satisfied the Minister that he or she has a genuine intention to visit Australia temporarily as a tourist. This condition is not imposed on an applicant who satisfies the Minister that he or she has a genuine intention to visit Australia temporarily for business purposes, as these applicants may engage in work in Australia in limited circumstances and where that work is related to their visit to Australia temporarily for business purposes unless that work might otherwise be carried out by an Australian citizen or an Australian permanent resident.

New clause 651.613 provides that if the applicant intends to visit Australia temporarily for a business purpose, condition 8112 must be imposed.

This condition is imposed only on an applicant for a Subclass 651 (eVisitor) visa who at time of decision satisfied the Minister that he or she has a genuine intention to visit Australia temporarily for business purposes. This condition has not been imposed on an applicant who satisfies the Minister that he or she has a genuine intention to visit Australia temporarily as a tourist, as these applicants must not engage in work in Australia.

Way of giving evidence

New clause 651.711 provides that no evidence need be given for a Subclass 651 (eVisitors) visa.

Item [64] – Schedule 2, after sub-subparagraph 773.213(1)(g)(iii)(A)

This item inserts new sub-subparagraph 773.213(1)(g)(iii)(B) in Part 773 of Schedule 2 to the Principal Regulations.

This item provides that a person who has entered Australia without a visa that is in effect (and seeks to remain in Australia on a temporary basis and it appears to the Minister from information in the application that the person is eligible for the grant of a Visitor (Class TV) visa), then that person may meet the criteria to be satisfied at time of application for a Subclass 773 (Border) visa under clause 773.213.

Items [65] – [80] – Schedule 2, Parts 855, 856, 857 and 858

These items amend Parts 855, 856, 857 and 858 of Schedule 2 to the Principal Regulations to insert “Visitor (Class TV)” into new provisions under the criteria to be satisfied at time of application to provide that if an applicant is the holder of a Visitor (Class TV) visa, they will not meet the criteria to be satisfied at the time of application for the following Subclasses:

These items prevent Visitor (Class TV) holders from meeting the criteria for the above Subclasses. This is to ensure Subclass 651 (eVisitor) visa holders do not have greater access to apply for a permanent skilled visa while in Australia than holders of other visitor visas.

Item [81] – Schedule 2, after sub-sub-subparagraph 956.511(a)(ii)(A)(I)

This item inserts new sub-sub-subparagraph 956.511(a)(ii)(A)(IA) in Part 956 of Schedule 2 of the Principal Regulations.

This item provides in effect that if an applicant holds a Subclass 651 (eVisitor) visa and is subsequently granted a Subclass 956 (Electronic Travel Authority (Business Entrant – Long Validity) visa, the Subclass 956 visa will come into effect on grant.

Subparagraph 956.511(a)(ii) provides that generally a Subclass 956 visa will not come into effect until the applicant’s substantive visa, if any, ceases to be in effect, excepting certain short-term substantive visas. This amendment includes the new Subclass 651 (eVisitor) visa in the list of excepted short-term substantive visas. This is consistent with other short term visitor visas.

Item [82] – Schedule 2, after sub-sub-subparagraph 977.511(a)(ii)(A)(I)

This item inserts new sub-sub-subparagraph 977.511(a)(ii)(A)(IA) in Part 977 of Schedule 2 of the Principal Regulations.

This item provides in effect that if an applicant holds a Subclass 651 (eVisitor) visa and is subsequently granted a Subclass 977 (Electronic Travel Authority (Business Entrant – Short Validity) visa, the Subclass 977 visa will come into effect on grant.

Subparagraph 977.511(1)(ii) provides that generally a Subclass 977 visa will not come into effect until the applicant’s substantive visa, if any, ceases to be in effect, excepting certain short-term substantive visas. This amendment includes the new Subclass 651 (eVisitor) visa in the list of excepted short-term substantive visas. This is consistent with other short term visitor visas.

Item [83] – Schedule 4, Part 2, after item 4058G

This item inserts new item 4058H in Part 2 of Schedule 4 to the Principal Regulations.

Item 4058H provides that conditions 8101 and 8201 are conditions applicable to Subclass 651 (eVisitor) for the purposes of subclause 4013(2).

The effect of this item is that an applicant will be affected by a risk factor for the purposes of Public Interest Criterion (PIC) 4013 if an applicant’s Subclass 651 (eVisitor) visa was cancelled under section 116 or 128 of the Act because the person did not comply with conditions 8101 or 8201 as specified in new item 4058H. For more detail on conditions 8101 or 8201 see Division 651.6 inserted by item [63].

Item [84] – Schedule 9, Part 1, after item 23 and before the note

This item inserts new item 24 in Column 1 of Part 1 of Schedule 9 to the Principal Regulations.

New item 24 provides that, to comply with section 166 of the Act (that requires certain people to be immigration cleared), the evidence of identity required for a person holding a Visitor (Class TV) visa, is an eVisitor eligible passport and the person must also provide a passenger card to a clearance authority.

This new item 24 is prescribed under new paragraph 3.03(3)(g) (see item [13]) that provides in effect that for subsection 166(3) of the Act, a non-citizen holding a Visitor (Class TV) visa who is required to comply with section 166 of the Act:

 

-         must present evidence of their identity as specified in Part 1 of Schedule 9 to a clearance authority; and

-         must also provide a completed passenger card to a clearance authority.

 

 

 

 

Schedule 2 – Amendments relating to Subclass 417 (Working Holiday) and Subclass 462 (Work and Holiday) visas

 

Item [1] – Schedule 1, subparagraph 1224A(3)(b)(ii)

 

This item omits “entered” Australia and inserts “been in” Australia, in subparagraph 1224A(3)(b)(ii) of Schedule 1 to the Principal Regulations.

 

This is a technical amendment to ensure that an applicant cannot make a valid application for a Subclass 462 (Work and Holiday) visa if they have previously been in Australia as the holder of a Subclass 417 (Working Holiday) or a Subclass 462 (Work and Holiday) visa.

 

The purpose of both the Subclass 417 (Working Holiday) visa and the Subclass 462 (Work and Holiday) visa is to give young people an opportunity to holiday in Australia and supplement their funds through short term work. The intention behind subparagraph 1224A(3)(b)(ii) is that applicants should generally only be able to hold either one or the other of a Subclass 417 (Working Holiday) or Subclass 462 (Work and Holiday) visa(s) as the purpose of these two visa subclasses is fundamentally the same.

 

Item [2] – Schedule 1, subparagraph 1224A(3)(c)(ii)

 

This item substitutes a new subparagraph 1224A(3)(c)(ii) in Schedule 1 to the Principal Regulations.

 

New subparagraph 1224A(3)(c)(ii) provides in effect that if an applicant holds a Subclass 462 (Work and Holiday) visa at the time of application, the applicant must not have previously held, in Australia, more than two Subclass 462 (Work and Holiday) visas.

 

This is a technical amendment to ensure that an applicant can only have held a maximum of three Subclass 462 (Work and Holiday) visas in Australia. A person who has previously held three Subclass 462 (Work and Holiday) visas must apply for a different kind of visa if they wish to return to, or remain in Australia.

 

Item [3] – Schedule 1, paragraph 1225(3)(a)

 

This item substitutes new paragraph 1225(3)(a) in Schedule 1 to the Principal Regulations.

 

New paragraph 1225(3)(a) provides that if an applicant for a Working Holiday (Subclass 417) visa is, or has previously been, in Australia as the holder of a working holiday visa, the application using form 1150 must be made by posting or having the application sent by fax to the address specified by the Minister in an instrument in writing.

New paragraph 1225(3)(a) differs from the previous provision firstly in that the words “if the applicant has previously entered Australia as the holder of a working holiday visa” are replaced with “if the applicant is or has previously been in Australia as the holder of a working holiday visa”. This is a technical amendment to clarify that the provision applies where an applicant holds, or has held, a Subclass 417 visa in Australia (see item [6] for further details).

 

Secondly, new paragraph 1225(3)(a) provides for an additional method of applying for a Subclass 417 (Working Holiday) visa where an applicant is or has previously been in Australia as the holder of a working holiday visa. These applicants can apply by fax, as well as by post and over the internet, which provides greater flexibility in the methods of lodgement for applications for a second Subclass 417 visa.

 

Item [4] – Schedule 1, paragraph 1225(3)(b)

 

This item omits the words “has not previously entered” and inserts the words “is not, and has not previously been, in”, in paragraph 1225(3)(b) of Schedule 1 to the Principal Regulations.

 

The effect of this amendment is that if an applicant using form 1150 for a Subclass 417 (Working Holiday) visa is not, and has not previously been, in Australia as the holder of a working holiday visa, the person must make their application as specified in subparagraphs 1125(3)(i) and (ii). Under these subparagraphs, if the person is a member of a class of persons specified in an instrument in writing under subparagraph 1225(3)(b)(i), the application may be made in any foreign country. However, if the person is a member of a class of persons specified by the Minister in an instrument in writing under subparagraph 1225(3)(b)(ii), the application must be made in the foreign country specified in an instrument in writing.

 

This is a technical amendment to clarify that the provision applies where an applicant does not hold, and has not held, a Subclass 417 (Working Holiday) visa in Australia (see item [6] for further details).

 

Item [5] – Schedule 1, subitem 1225(3A)

 

This item omits the words “has not previously entered” and inserts the words “is not, and has not previously been, in”, in paragraph 1225(3A) of Schedule 1 to the Principal Regulations.

 

The effect of this amendment is to provide that if an applicant for a Subclass 417 (Working Holiday) visa is not, and has not previously been, in Australia as the holder of a working holiday visa, the applicant must be outside Australia and hold a working holiday eligible passport to make a valid application.

 

This is a technical amendment to clarify that the provision applies where an applicant does not hold, and has not held, a Subclass 417 (Working Holiday) visa in Australia (see item [6] for further details).

 

Item [6] – Schedule 1, subitem 1225(3B)

 

This item substitutes new subitem 1225(3B) in Schedule 1 to the Principal Regulations.

New subitem 1225(3B) provides that if the applicant is, or has previously been, in Australia as the holder of a working holiday visa, among other things the applicant must not have previously held more than one working holiday visa in Australia to make a valid application.

This is a technical amendment to clarify that a person cannot hold more than two Subclass 417 (Working Holiday) visas in Australia. An applicant may be eligible for a second Subclass 417 (Working Holiday) visa if they have carried out “specified work” in regional Australia for at least three months in accordance with paragraph 1225(3B)(c) of Schedule 1 and subclause 417.211(5) of Schedule 2 to the Principal Regulations. “Specified work” is defined as work of a kind specified by the Minister in an instrument in writing.

 

The provision was previously worded so that if an applicant is granted their second Subclass 417 (Working Holiday) visa in Australia and does not leave and re-enter Australia as the holder of that visa, they may be eligible for a further Subclass 417 visa. This is because, in the above situation, the applicant has not “previously entered Australia as the holder of more than one working holiday visa”. This outcome is unintended and inconsistent with the original policy intention that a person cannot hold more than two Subclass 417 (Working Holiday) visas in Australia. This amendment rectifies this problem to ensure that a person cannot hold more than two Subclass 417 (Working Holiday) visas in Australia.

 

Item [7] – Schedule 2, paragraph 417.211(2)(a)

 

This item omits paragraph 417.211(2)(a) from Schedule 2 to the Principal Regulations.

 

The effect of this amendment is to omit the requirement that the applicant has no dependent children to be eligible for a Subclass 417 (Working Holiday) visa. This amendment is consequential to item [9], which inserts a provision requiring that the Minister must be satisfied that the applicant will not be accompanied by dependent children during his or her stay in Australia.

 

Item [8] – Schedule 2, paragraph 417.211(4)(c)

 

This item omits the word “Australia.” and inserts “Australia; and” in paragraph 417.211(4)(c) in Schedule 2 to the Principal Regulations.

 

This amends the punctuation in paragraph 417.211(4)(c) by adding the word “and” to allow new paragraph 417.211(4)(d) to be inserted (see item [9]).

 

Item [9] – Schedule 2, after paragraph 417.211(4)(c)

 

This item inserts new paragraph 417.211(4)(d) in Subdivision 417.21 of Division 417.2 of Part 417 of Schedule 2 to the Principal Regulations.

 

New paragraph 417.211(4)(d) provides that a criterion to be satisfied at the time of application for a Subclass 417 (Working Holiday) visa is that the Minister must be satisfied that the applicant will not be accompanied by dependent children during his or her stay in Australia.

 

“Dependent child” is defined in regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations as a natural or adopted child, or step-child (other than a child who has a spouse or is engaged to be married), who has not turned 18, or is dependent on the person or cannot work due to a disability.

 

Previously, to meet the criteria to be satisfied at time of application for a Subclass 417 (Working Holiday) visa an applicant must not have had dependent children. This included applicants who did not have contact with their children or who had made arrangements for their children’s care during their proposed stay in Australia. This amendment ensures that an applicant may be eligible for a Subclass 417 (Working Holiday) visa provided they will not be accompanied by their children during their proposed stay in Australia.

 

Item [10] – Schedule 2, subclause 417.211(5)

 

This item omits the words “has previously entered” and inserts “is, or has previously been, in” in subclause 417.211(5) in Subdivision 417.21 of Division 417.2 of Part 417 of Schedule 2 to the Principal Regulations.

 

The effect of this amendment is to provide that if the applicant is, or has previously been, in Australia as the holder of a working holiday visa, the applicant must have carried out “specified work” in regional Australia for at least 3 months to be eligible for a Subclass 417 (Working Holiday) visa.

 

This is a technical amendment to clarify that subclause 417.211(5) applies where the applicant is, or has previously been, in Australia as the holder of a working holiday visa (see item [11] for further details].

 

Item [11] – Schedule 2, clause 417.222

 

This item substitutes new clause 417.222 in Subdivision 417.21 of Division 417.2 of Part 417 of Schedule 2 to the Principal Regulations.

 

New clause 417.222 provides that if the applicant is or has previously been in Australia as the holder of a working holiday visa, the applicant must have complied substantially with the conditions that applied to any visa held by the applicant, and the applicant must not have previously held more than one working holiday visa in Australia, to be eligible for a Subclass 417 (Working Holiday) visa.

 

This is a technical amendment to clarify that a person cannot hold more than two Subclass 417 (Working Holiday) visas in Australia. The previous provision was worded so that if an applicant was granted their second Subclass 417 (Working Holiday) visa in Australia and did not leave and re-enter Australia as the holder of that visa, they may have been eligible for a further Subclass 417 visa. This is because, in the above situation, the applicant had not “previously entered Australia as the holder of more than one working holiday visa”. This outcome was unintended and inconsistent with the original policy intention that a person could not hold more than two Subclass 417 (Working Holiday) visas in Australia. This amendment rectifies this problem to ensure that a person cannot hold more than two Subclass 417 (Working Holiday) visas in Australia.

 

Item [12] – Schedule 2, clause 417.411

 

This item omits the words “has not previously entered” and inserts “is not, and has not previously been, in” in clause 417.411 of Division 417.4 of Part 417 of Schedule 2 to the Principal Regulations.

 

The effect of this amendment is to provide that if the applicant is not, and has not previously been, in Australia as the holder of a working holiday visa, the applicant must be outside Australia at the time of grant.

 

This is a technical amendment to clarify that the provision applies where the applicant is not, and has not previously been, in Australia as the holder of a working holiday visa (see item [11] for further details).

 

Item [13] – Schedule 2, clause 417.412

 

This item omits the words “has previously entered” and inserts “is, or has previously been, in” in clause 417.412 in Division 417.4 of Part 417 of Schedule 2 to the Principal Regulations.

 

The effect of this amendment is to provide that if the applicant is, or has previously been, in Australia as the holder of a working holiday visa, the applicant must be in Australia at the time of grant if they are in Australia at the time of application, and the applicant must be outside Australia at the time of grant if they are outside Australia at the time of application.

 

This is a technical amendment to clarify that the provision applies where the applicant is, or has previously been, in Australia as the holder of a working holiday visa (see item [11] for further details).

 

Item [14] – Schedule 2, subclause 417.511(1)

 

This item omits the word “application” and inserts the word “grant” in subclause 417.511(1) in Schedule 2 to Division 417.5 of Part 417 of the Principal Regulations.

 

This amendment provides that if the applicant is outside Australia at the time of grant (rather than at the time of application), the Subclass 417 (Working Holiday) visa is a temporary visa permitting the holder to travel to and enter Australia within 12 months after the date of grant of the visa and to travel to, enter and remain in Australia until 12 months after the date of first entry to Australia.

 

The purpose of this amendment is to give effect to the original policy intention that the holder of a Subclass 417 visa is permitted to stay in Australia as a working holiday maker for a total period of 12 months, unless they are eligible for a second Subclass 417 visa (see item [15] below for further details).

 

 

Item [15] – Schedule 2, subclauses 417.511(2) and (3)

 

This item substitutes new subclauses 417.511(2) and (3) in Division 417.5 of Part 417 of Schedule 2 to the Principal Regulations.

 

New subclause 417.511(2) provides that if the applicant is in Australia at the time of grant, and the applicant holds a working holiday visa at the time of application, the Subclass 417 (Working Holiday) visa is a temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date that the visa mentioned in paragraph 417.511(2)(b) would have otherwise ceased to be in effect.

 

An applicant may be eligible for a second Subclass 417 (Working Holiday) visa if they have carried out “specified work” in regional Australia for at least three months (see item [6] for further details).

 

New subclause 417.511(3) provides that if the applicant is in Australia at the time of grant, and the applicant does not hold a working holiday visa at the time of application, the Subclass 417 (Working Holiday) visa is a temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date of grant of the visa.

 

The purpose of this amendment is to give effect to the original policy intention that an applicant who holds a Subclass 417 (Working Holiday) visa in Australia at the time they apply for the second Subclass 417 visa, is permitted to stay in Australia as a working holiday maker for a total period of 24 months (This includes the 12 months they were permitted to be in Australia on the first working holiday visa). An applicant who does not hold a Subclass 417 (Working Holiday) visa in Australia at the time they apply for a Subclass 417 visa, is permitted to stay in Australia as a working holiday maker for a total period of 12 months.

 

Item [16] – Schedule 2, clause 462.511

 

This item omits the word “application” and inserts the word “grant” in clause 462.511 of Division 462.5 of Part 462 of Schedule 2 to the Principal Regulations.

 

This amendment provides that if the applicant is outside Australia at the time of grant (rather than the time of application), the Subclass 462 (Work and Holiday) visa is a temporary visa permitting the holder to travel to and enter Australia within three months after the date of the grant of the visa, and to travel to, enter and remain in Australia until 12 months after the date of first entry to Australia.

 

The purpose of this amendment is to give effect to the original policy intention that the holder of a Subclass 462 visa is permitted to stay in Australia as a working holiday maker for a total period of 12 months on each Subclass 462 visa.

Item [17] – Schedule 2, paragraph 462.512

 

This item omits the word “application” and inserts the word “grant” in clause 462.512 Division 462.5 of Part 462 of Schedule 2 to the Principal Regulations.

 

This amendment provides that if the applicant is in Australia at the time of grant (rather than the time of application), the Subclass 462 (Work and Holiday) visa is a temporary visa permitting the holder to travel to, enter and remain in Australia until 12 months after the date of grant.

 

The purpose of this amendment is to give effect to the original policy intention that the holder of a Subclass 462 visa is permitted to stay in Australia as a working holiday maker for a total period of 12 months on each Subclass 462 visa.

 

Schedule 3 – Amendments relating to Visa Application Charges

 

Item [1] – Schedule 1, sub-subparagraph 1218(2)(a)(ii)(B)

This item amends Schedule 1 to the Principal Regulations to increase the Visa Application Charge (VAC) for applicants for a Tourist (Class TR) visa that are in Australia at the time of application from $215 to $240.

This increase is a result of the Department of Immigration and Citizenship’s Financial Health Review which was undertaken by the Department of Finance and Deregulation. The increase was intended to have been implemented on 1 July 2008 with the annual indexation of fees as part of changes to ensure that Visitor visas are better aligned with the administrative costs associated with processing applications for these visas. However, due to an administrative oversight this increase was not included in the Migration Legislation Amendment Regulations 2008 (No. 1).

The amount of the increase in this item does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

Item [2] – Schedule 1, further amendments

This item amends Schedule 1 to the Principal Regulations to increase the second instalment of the Visa Application Charge (“second VAC”) for the visa subclasses within the Contributory Parent visa category.

The second VAC has been increased by 3.7% according to the published 2008-09 Contributory Parent Visa Composite Index (“CPVCI”).

The CPVCI is designed to increase the second VAC at the same relative pace as the total estimated average cost to the Commonwealth arising from entrants under Contributory Parent (Migration) (Class CA), Contributory Aged Parent (Residence)(Class DG), Contributory Parent (Temporary)(Class UT) and Contributory Aged Parent (Temporary)(Class UU).

The CPVCI is determined by the Australian Government Actuary (AGA) using a methodology where a weighted average of the growth in various indices corresponding to major cost drivers (health, aged care and income support expenditure) is used. The AGA has recently provided the Department of Immigration and Citizenship with a revised costing model. Based on this revised model the 2008-09 CPVCI is 3.7%.

 

All increases are rounded to a multiple of $5.00 according to the following methodology:

·        if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00; or

·        in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The amount of the increase in these items does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997.

 

Schedule 4 – Amendments relating to maritime crew visas

 

Item [1] – Regulation 1.03, definition of member of the crew, subparagraph (a)(ii)

 

This item omits ‘paragraph (b)’ in subparagraph (a)(ii) of the definition of ‘member of the crew’ in regulation 1.03 of the Principal Regulations and inserts ‘subparagraph (a)(ii)’.

 

This is a technical amendment that corrects an error in the cross-reference contained in the definition of a ‘member of the crew’ in regulation 1.03 of the Principal Regulations to paragraph (b) of the definition of a ‘non-military ship’. The new cross-reference refers to subparagraph (a)(ii) of the definition of a ‘non-military ship’. This amendment clarifies that a person who is engaged in scientific research conducted on or from a ship and owned and operated by a foreign government for the purposes of scientific research (within the definition of subparagraph (a)(ii) of a ‘non-military ship’) is defined as a ‘member of the crew’ in relation to that ‘non-military ship’.

 

Item [2] – Paragraph 3.01(2)(e)

 

This item omits the phrase, ‘as the holder of a Maritime Crew (Temporary) (Class ZM) visa, or as the applicant for grant of that visa’ from paragraph 3.01(2)(e) of the Principal Regulations.

 

This amendment ensures that persons who arrive in Australia as a member of the crew of a non-military ship, or as the spouse or dependent child of a member of the crew of that non-military ship, are not subject to the requirements in regulation 3.01. Generally, regulation 3.01 requires that persons arriving in Australia must provide a completed passenger card to an officer. The amendment removes the requirement that a member of the crew of a non-military ship, or the spouse or dependent child of a member of the crew of a non-military ship, must be the holder of a Maritime Crew (Temporary) (Class ZM) visa (“MCV”) or an applicant for grant of that visa to be excluded from the operation of regulation 3.01 by operation of paragraph 3.01(2)(e).

 

 

 

 

Item [3] – Schedule 2, clause 988.222

 

This item inserts public interest criterion (PIC) 4004 in clause 988.222 of Schedule 2 to the Principal Regulations.

 

Clause 988.222 is a criterion to be satisfied at time of decision for applicants seeking to satisfy the primary criteria for grant of a MCV. PIC 4004 is a public interest criterion set out in Schedule 4 to the Principal Regulations.

 

The insertion of PIC 4004 means that an applicant for a MCV must not have an outstanding debt to the Commonwealth, unless the Minister is satisfied that appropriate arrangements have been made for payment of that debt.

 

Item [4] – Schedule 2, after clause 988.223

 

This item inserts new clauses 988.224 and 988.225 in Schedule 2 to the Principal Regulations.

 

New clauses 988.224 and 988.225 are criteria to be satisfied at time of decision by persons seeking to satisfy the primary criteria for grant of a MCV.

 

New clause 988.224 provides that the Minister is satisfied that an applicant’s expressed intention to enter and remain in Australia for the purpose of being a member of the crew of a non-military ship is genuine. This clause seeks to address applications for grant of a MCV where applicants have not demonstrated, largely by virtue of a failure to provide additional or confirmatory information upon request, a genuine interest in obtaining an MCV for its legitimate use.

 

New clause 988.225 provides that applicants for grant of a MCV must hold a valid passport, issued to the applicant by an official source and that the passport is in the form issued by that official source, unless the Minister is satisfied that it would be unreasonable to require the applicant to be the holder of a passport. This clause is made in response to evidence that some applicants for grant of a MCV are not holders of a valid passport.

 

Item [5] – Schedule 2, clause 988.322

 

This item inserts public interest criterion (PIC) 4004 in clause 988.322 of Schedule 2 to the Principal Regulations.

 

New clause 988.322 is a criterion to be satisfied at the time of decision for applicants seeking to satisfy the secondary criteria for grant of a MCV. PIC 4004 is a public interest criterion set out in Schedule 4 to the Principal Regulations.

 

The insertion of PIC 4004 means that an applicant for a MCV must not have an outstanding debt to the Commonwealth, unless the Minister is satisfied that appropriate arrangements have been made for payment of that debt.

 

 

 

Item [6] – Schedule 2, after clause 988.323

 

This item inserts new clause, 988.324 in Schedule 2 to the Principal Regulations.

 

New clause 988.324 is a criterion to be satisfied at time of decision for persons seeking to satisfy the secondary criteria for grant of a MCV. Clause 988.324 provides that spouses or dependent children of persons who satisfied the primary criteria for grant of the MCV must, as applicants seeking grant of a MCV, hold a valid passport, issued to them by an official source and that the passport be in the form issued by that official source, unless the Minister is satisfied that it would be unreasonable to require the applicant to be the holder of a passport. This provision is made in response to evidence that some applicants for grant of a MCV are not holders of a valid passport.

 

Item [7] – Schedule 8, item 8113

 

This item omits ‘of Subclass 988 (Maritime Crew) visa’ from item 8113 of

Schedule 8 to the Principal Regulations.

 

Item 8113 is a visa condition limiting the holder of a MCV to work in Australia as a member of the crew of a non-military ship. Inclusion of reference to MCVs in item 8113 restricts use of this visa condition to this specific class of visa to the exclusion of others. The intention of this amendment is to allow for the use of the item 8113 condition in other visa subclasses in the future.

Schedule 5 – Amendments relating to language proficiency

 

Item [1] – Schedule 2, paragraph 485.215(b)

 

This item omits ‘English; or’ and inserts ‘English.’ in paragraph 485.215(b) in Schedule 2 to the Principal Regulations.

 

This is a technical amendment, contingent on the amendments made in item [2] of this Schedule.

 

Item [2] – Schedule 2, paragraph 485.215(c)

 

This item omits paragraph 485.215(c) in Schedule 2 to the Principal Regulations.

Clause 485.215 is a criterion to be satisfied at time of application by applicants seeking to satisfy the primary criteria for a Subclass 485 (Skilled (Graduate)) visa. It provides that applicants must satisfy English language requirements by meeting one of paragraphs (a), (b) or (c). Paragraph 485.215(a) provides that if the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, then the applicant must have vocational English. ‘Vocational English’ is defined in regulation 1.15B. Paragraph 485.215(b) requires that the applicant has competent English. ‘Competent English’ is defined in regulation 1.15C. Paragraph 485.215(c) requires that the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph. The International English Language Testing System (IELTS) test is one of the testing regimes specified for the purpose of paragraph 485.215(c).

 

The option in paragraph 485.215(c) was introduced in response to claims from migration agents and clients that there were capacity problems with the IELTS regime. It has since emerged that these capacity problems do not exist. Furthermore, there is a possibility that this option is being exploited by applicants to extend their stay in Australia by not booking the next available IELTS test.

 

This amendment ensures that applicants seeking to satisfy the primary criteria for grant of a Subclass 485 (Skilled (Graduate)) visa must, at time of application, have either vocational English (if their nominated occupation is in the Major Group IV in the Australian Standard Classification of Occupations), or competent English.

 

Item [3] – Schedule 2, clause 485.222

 

This item omits clause 485.222 in Schedule 2 to the Principal Regulations.

 

Clause 485.222 is a criterion to be satisfied at the time of decision by applicants seeking to satisfy the primary criteria for grant of a Subclass 485 (Skilled (Graduate)) visa. It provides that if the application is accompanied by evidence that the applicant has made arrangements to undergo an English language test in accordance with paragraph 485.215(c), then the applicant must either have vocational English (if their nominated occupation is in the Major Group IV in the Australian Standard Classification of Occupations), or competent English. As paragraph 485.215(c) is being omitted by item [2] of this Schedule, clause 485.222 can also be omitted.

 

 


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