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MIGRATION AMENDMENT REGULATIONS 2009 (NO. 13) (SLI NO 289 OF 2009)
EXPLANATORY STATEMENT
Migration Act 1958
Migration Amendment Regulations 2009 (No. 13)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy.
In particular, the Regulations make the following amendments to the Principal Regulations:
· a sponsor will be required to make a health undertaking where their nomination application identifies the holder of a Subclass 457 (Business (Long Stay)) visa who was previously granted this visa on the basis of such a health undertaking by a previous sponsor (Schedule 1 to the Regulations refers);
· interchange of status between an applicant who makes specific claims for protection and an applicant who relies on the claims of the primary applicant will be allowed in the case of an application for a Subclass 866 (Protection) visa lodged by a member of the family unit of a primary applicant (Schedule 2 to the Regulations refers);
· an unborn child, not listed as a member of the same family unit when an application for a Protection visa is lodged, will be entitled to be granted a Protection visa as a member of the same family unit when the child is born (Schedule 2 to the Regulations refers);
· the definition of carer in regulation 1.15AA of the Principal Regulations will be changed (Schedule 3 to the Regulations refers);
· Subclass 309 (Partner (Provisional)) visa or Subclass 820 (Partner) visa will be granted to a dependant applicant on remittal from the Migration Review Tribunal (MRT) when the primary applicant has already been granted a Subclass 100 (Partner) visa or Subclass 801 (Partner) visa (Schedule 4 to the Regulations refers);
· a “sponsoring partner” within permanent Partner visa subclasses will be required to be an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of grant (Schedule 4 to the Regulations refers);
· no more than one remaining relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen will be granted a Subclass 115 (Remaining Relative) visa or Subclass 835 (Remaining Relative) visa on the basis of satisfying the primary criteria for grant of a Subclass 115 (Remaining Relative) visa or Subclass 835 (Remaining Relative) visa (Schedule 4 to the Regulations refers);
· a holder or former holder of a substituted Subclass 676 (Tourist) visa will not have to meet the age requirement for a Subclass 864 (Contributory Aged Parent) visa (Schedule 4 to the Regulations refers);
· simplify the wording, and clarify the policy intention, in relation to applications for, and grant of, a Bridging F visa (Schedule 5 to the Regulations refers); and
Details of the Regulations are set out in Attachment B.
The Regulations commence on 9 November 2009.
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.
No consultation was necessary because the amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.
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; and
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 visa holder leaves Australia during a prescribed or specified period, to travel to and re-enter Australia during a prescribed or specified period;
· section 31 of the Act, which deals with classes of visa, in particular:
o subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class; and
o subsection 31(5) of the Act, which provides that a visa is of a particular class if this Act or the regulations specify that it is a visa of that class;
· subsection 40(1) of the Act, which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
· section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application;
· section 45B of the Act, which deals with the amount of visa application charges, in particular 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, in particular:
o subsection 46(1), which provides in part that an application for a visa is valid 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 require has been paid, and any fees payable under the regulations have been paid;
o subsection 46(2), which provides that the regulations may provide 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), 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), which provides 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, how an application for a visa of a specified class must be made, 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;
· section 140GB of the Act provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination;
· paragraph 504(1)(a) of the Act which provides that the regulations may make provision for and in relation to:
o the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or
o the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department of Immigration and Citizenship; or
o the way, including the currency, in which fees are to be paid; or
o the persons who may be paid fees on behalf of the Commonwealth Government; and
· paragraph 504(1)(b) of the Act which provides that regulations may make provision for the remission, refund or waiver of fees of a kind referred to in paragraph 504(1)(a) of the Act or for exempting persons from the payment of such fees.
ATTACHMENT B
Details of the Migration Amendment Regulations 2009 (No. 13)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 13) (the Regulations).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 9 November 2009.
Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1
Subregulation 3(1) provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.
Subregulation 3(2) provides that the amendments made by item [1] of Schedule 1 apply in relation to an application for approval of a nomination under section 140GB of the Act that is made, but not finally determined (within the meaning of section 5(9) of the Act) before 9 November 2009, or that is made on or after 9 November 2009.
Subregulation 3(3) provides that the amendments made by items [2] and [3] of Schedule 1 apply in relation to an application for a visa that is made, but not finally determined (within the meaning of subsection 5(9) of the Act) before 9 November 2009, or an application that is made on or after 9 November 2009.
Subsection 5(9) of the Act provides that an application is finally determined if a decision has been made by the person authorised (or delegated) to make a decision in respect of the application, and that decision is no longer subject to, or is outside of time for, merits review by the Migration Review Tribunal or the Refugee Review Tribunal.
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
Subregulation 4(1) provides that the Principal Regulations are amended as set out in Schedule 2.
Subregulation 4(2) provides that the
amendments made by Schedule 2 apply in relation to an application for a visa
that is made, but not finally determined (within the meaning of section 5(9) of
the Act) before 9 November 2009, or that is made on or after
9 November 2009.
Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3
Subregulation 5(1) provides that the Principal Regulations are amended as set out in Schedule 3.
Subregulation 5(2) provides that the amendments apply in relation to an application for a visa made on or after 9 November 2009.
Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4
Subregulation 6(1) provides that the Principal Regulations are amended as set out in Schedule 4.
Subregulation 6(2) provides that the
amendments made by items [1] to [5] and items [7] and [9] of Schedule 4 apply
in relation to an application for a visa made on or after
9 November 2009.
Subregulation 6(3) provides that the amendments made by items [6] and [8] and items [10] to [12] of Schedule 4 apply in relation to an application for a visa that is made, but not finally determined (within the meaning of section 5(9) of the Act) before 9 November 2009, or that is made on or after 9 November 2009.
Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5
Subregulation 7(1) provides that the Principal Regulations are amended as set out in Schedule 5.
Subregulation 7(2) provides that the amendments made by Schedule 5 apply in relation to an application for a Bridging F (Class WF) visa made, but not finally determined (within the meaning of subsection 5(9) of the Act) before 9 November 2009, or an application that is made on or after 9 November 2009.
Regulation 8 – Amendment of Migration Regulations 1994 – Schedule 6
Regulation 8 provides that the Principal Regulations are amended as set out in Schedule 6.
A note advises that there are no transitional arrangements for Schedule 6.
Schedule 1 – Amendments relating to Subclass 457 (Business (Long Stay)) visas
Item [1] – After subregulation 2.72 (7)
This item inserts a new subregulation 2.72(7A) in Part 2A to the Principal Regulations. Regulation 2.72 sets out the criteria for approval of a nomination made by a person who is a standard business sponsor or a party to a work agreement.
New paragraph 2.72(7A)(a) requires that where:
- the person who is an approved sponsor identifies a holder of a Subclass 457 (Business (Long Stay)) visa in a nomination; and
- that visa was granted after the Minister for Immigration and Citizenship (the Minister) had waived the requirements of paragraph 4006A(1)(c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A(2) of that Schedule);
the person must satisfy the Minister they have provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
New paragraph 2.72(7A)(b) requires that where:
- the person who is an approved sponsor identifies a holder of a Subclass 457 visa; and
- the person has listed on the nomination a person who was granted a Subclass 457 visa on the basis of being the member of the family unit of a person who satisfied the primary criteria for a Subclass 457 visa; and
- that visa was granted to the visa holder after the Minister had waived the requirements of paragraph 4006A(1)(c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A(2) of that Schedule);
the person must satisfy the Minister they have provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
Clause 4006A of Schedule 4 to the Principal Regulations prescribes the standard health requirement for Subclass 457 (Business (Long Stay)) visa applicants, including a waiver where the applicant’s employer is willing to give a written undertaking to meet costs relating to the applicant’s health condition that caused the applicant to fail to meet the health requirement.
The purpose of this amendment is to ensure that a subsequent approved sponsor of an existing Subclass 457 visa holder must make the same undertaking in relation to the visa holder’s health costs as the current sponsor of the Subclass 457 (Business (Long Stay)) visa holder.
Item [2] – Schedule 4, subclause 4006A(2)
This item replaces each mention of ‘relevant employer’ in subclause 4006A(2) of Schedule 4 to the Principal Regulations and inserts ‘relevant nominator’ in its place.
Subclause 4006A(2) provides that the Minister may waive the standard health requirement set out in subclause 4006A(1) if the ‘relevant nominator’ gives a written undertaking to meet all costs relating to the applicant’s health condition that caused the applicant to fail to meet the health requirement. ‘Relevant nominator’ is defined in new subclause 4006A(3) inserted by item [3] of Schedule 1 to the Regulations.
This amendment, together with the amendment made by item [3], ensures that it is always the approved sponsor who has identified the visa applicant in the nomination, or has agreed in writing to be the approved sponsor of the visa applicant, who gives the written undertaking to meet the costs associated with the visa applicant’s health condition, regardless of whether the approved sponsor is also the visa applicant’s employer.
Item [3] – Schedule 4, subclause 4006A(3)
This item replaces the current definition of ‘relevant employer’ with a new definition of “relevant nominator” at subclause 4006A(3) of Schedule 4 to the Principal Regulations.
New subclause 4006A(3) specifies that a ‘relevant nominator’ means an approved sponsor who has either:
- lodged a nomination in relation to a primary applicant; or
- has included an applicant who is a member of the family unit of a primary applicant in a nomination for the primary applicant; or
- has agreed in writing for an applicant who is a member of the family unit to be a secondary sponsored person in relation to the approved sponsor.
This amendment, together with the amendment made by item [2] of Schedule 1 to the Regulations, ensures that it is always the approved sponsor of the visa applicant who gives the written undertaking to meet the costs associated with the visa applicant’s health condition, regardless of whether the approved sponsor is also the visa applicant’s employer.
Schedule 2 – Amendments relating to Subclass 866 (Protection) visas
Item [1] – Paragraph 866.211(b)
This item omits ‘(the claimant)’ in paragraph 866.211(b) in Schedule 2 to the Principal Regulations.
This amendment is a consequential amendment to items [2] and [3] of Schedule 2 to the Regulations that alleviate the need for this expression.
Item [2] – Schedule 2, clauses 866.221 and 866.222
This item replaces current clause 866.221 with a new clause 866.221 and repeals clause 866.222 of Schedule 2 to the Principal Regulations.
New clause 866.221 provides that the Minister is satisfied that the Subclass 866 (Protection) visa applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (‘Refugees Convention’), or is satisfied that the applicant is a member of the same family unit as an applicant to whom Australia has protection obligations under the Refugees Convention who has been granted a Protection (Class XA) visa.
The purpose of this amendment is to clarify that regardless of the Protection visa applicant’s status at the time of application, at the time of decision the Protection visa applicant can be either a person who satisfies the Minister that they are a person to whom Australia has protection obligations under the Refugees Convention, or they can be a member of the same family unit of such a person if that person has been granted a Protection (Class XA) visa.
Item [3] – Schedule 2, clause 866.230
This item replaces current clause 866.230 with a new clause 866.230 of Schedule 2 to the Principal Regulations.
New clause 866.230 provides that if the Subclass 866 (Protection) visa applicant is a child referred to in paragraph 2.08(1)(b), the applicant may be eligible for the visa if they are a member of the same family unit as an applicant mentioned in paragraph 866.221(a) (which is an applicant to whom Australia has protection obligations under the Refugees Convention) and the applicant mentioned in paragraph 866.221(a) has been granted a Subclass 866 visa.
Presently, a child who is born after its parent(s) make an application for a Protection visa and before it is decided, would only meet the time of decision criteria for the grant of a Protection visa if the child was, at the time of decision, a member of the same family unit of the person who at the time of application made specific claims under the Refugees Convention and was an applicant for a Protection (Class XA) visa.
The effect of this amendment is that such a child will meet the time of decision criteria for the grant of a protection visa based on the status of members of the same family unit at the time of decision regardless of the status of those members at the time of application.
Schedule 3 – Amendments relating to carers
Item [1] – After paragraph 1.15AA (1)(b)
This item inserts new paragraph 1.15AA(1)(ba) in regulation 1.15AA of Part 1 of the Principal Regulations.
Subregulation 1.15AA details the requirements that must be met if an applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident). Specifically, paragraphs 1.15AA(a) and (b) provide, amongst other requirements, that the applicant may be a carer if the applicant is a relative of the resident and a person (being the resident or a member of the family unit of the resident) has a medical condition.
New paragraph 1.15AA(ba) provides that the person (being the resident or a member of the family unit of the resident) who has a medical condition, must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The purpose of this amendment is to ensure that the person requiring care is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Item [2] – Paragraph 1.15AA(1)(e)
This item omits the words ‘be obtained’ from paragraph 1.15AA(1)(e) in regulation 1.15AA of Part 1 of the Principal Regulations and insert the word ‘be’ in paragraph 1.15AA(1)(e).
This amendment is consequential to the amendments made by item [3] of Schedule 3 to the Regulations to ensure that paragraph 1.15AA(1)(e) is grammatically correct and the language is consistent with new subparagraph 1.15AA(1)(e)(i).
Item [3] – Subparagraph 1.15AA(1)(e)(i)
This item omits the word ‘from’ in subparagraph 1.15AA(1)(e)(i) in regulation 1.15AA of Part 1 of the Principal Regulations and inserts the words ‘provided by’ in subparagraph 1.15AA(1)(e)(i).
Paragraph 1.15AA(1)(e) provides that an applicant for a visa will only be a carer when the assistance cannot reasonably be obtained from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, or from welfare, hospital, nursing or community services in Australia.
New subparagraph 1.15AA(1)(e)(i) provides that an applicant for a visa will only be a carer when the assistance cannot reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The purpose of this amendment is to ensure that it is open to decision-makers to conclude that assistance could reasonably be provided by relatives residing in Australia even in circumstances where those relatives residing in Australia claim to be unwilling or unable to provide assistance.
Item [4] – Subparagraph 1.15AA(1)(e)(ii)
This item omits the word ‘from’ in subparagraph 1.15AA(1)(e)(ii) in regulation 1.15AA of Part 1 of the Principal Regulations and inserts the words ‘obtained from’ in subparagraph 1.15AA(1)(e)(ii).
This amendment is consequential to the amendments made by item [3] of Schedule 3 to the Regulations to ensure paragraph 1.15AA(1)(e) is grammatically correct and the language is consistent with new subparagraph 1.15AA(1)(e)(i).
Schedule 4 – Amendments relating to sponsorship
Item [1] – Regulation 1.03, after definition of Australian permanent resident
This item inserts the definition of ‘Australian relative’ in regulation 1.03 of the Principal Regulations.
This amendment provides that in relation to an applicant, an Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The purpose of this amendment is to ensure that the term ‘Australian relative’ is defined within the general definitions of the Principal Regulations, as the term is used in three different places in the Principal Regulations.
Item [2] – Regulation 1.20K
This item replaces current regulation 1.20K with a new regulation 1.20K in Part 1 to the Principal Regulations.
The purpose of this amendment is to amend regulation 1.20K to give full effect to the policy intention of the regulation.
By way of explanation, the remaining relative visa program 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. Regulation 1.20K contains a bar that prevents grant of a remaining relative visa if the sponsor is a remaining relative, and grant of a remaining relative visa if the sponsor has already sponsored another remaining relative.
As the Principal Regulations provide that a remaining relative may be sponsored by their Australian relative or the spouse or de facto partner of that Australian relative, it is possible for one couple to sponsor two remaining relatives of one member of the couple, contrary to the policy intention that the remaining relative visa should not be granted to more than one person in the same family.
The purpose of this amendment is to give effect to the policy intention by amending regulation 1.20K for remaining relative visas to cover the following situations:
· where the Australian relative is the sponsor and is themself a remaining relative;
· where the Australian relative is the sponsor and has already sponsored a remaining relative;
· where the spouse/de facto of the Australian relative is the sponsor and the Australian relative is themself a remaining relative;
· where the spouse/de facto of the Australian relative is the sponsor and the Australian relative has already sponsored a remaining relative; and
· where the spouse/de facto has already been the sponsor of a remaining relative of the Australian relative, and the Australian relative is now seeking to sponsor a remaining relative.
Item [3] – Schedule 2, Clause 100.111, paragraph (a) of definition of sponsoring partner
This item replaces current paragraph 100.111(a) with new paragraph 100.111(a) of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to amend the definition of ‘sponsoring partner’ within clause 100.111 so as to remove ambiguity and to make it explicitly clear that the nominated ‘sponsoring partner’, for the purposes of the Subclass 100 (Partner) visa, must be a current Australian citizen, Australian permanent resident or eligible New Zealand citizen. This is intended to reinforce the underlying principle of family stream migration: that the applicant is joining or being sponsored by an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Item [4] – Schedule 2, clause 115.1
This item replaces the current note following clause 115.1 of Schedule 2 to the Principal Regulations with a new note.
The new note following clause 115.1 includes reference to ‘Australian relative’ before ‘dependent child’, thereby indicating that ‘Australian relative’ is defined in regulation 1.03.
This is a consequential amendment to item [1] of Schedule 4 to the Regulations, which would insert the definition of ‘Australian relative’ into regulation 1.03 of Part 1 to the Principal Regulations.
This amendment also adds a reference to regulation 2.03A in regard to the note reference for ‘de facto partner’.
Item [5] – Schedule 2, subclause 115.211
This item replaces current clause 115.211 with a new clause 115.211 of Schedule 2 to the Principal Regulations.
New clause 115.211 no longer defines ‘Australian relative’.
This item is a consequential amendment to item [1] of Schedule 4 to the Regulations, which inserts the definition of ‘Australian relative’ into regulation 1.03 of Part 1 to the Principal Regulations.
Item [6] – Schedule 2, clause 309.321
This item replaces current clause 309.321 with a new clause 309.321 of Schedule 2 to the Principal Regulations.
The effect of the amendment is that a Subclass 309 (Partner (Provisional)) visa may be granted to a dependant following review of a decision to not grant that visa regardless of whether the primary applicant has already been granted the Subclass 100 (Partner) visa (subject to the applicant meeting all other relevant criteria).
Item [7] – Schedule 2, clause 801.111, definition of sponsoring partner
This item omits each mention of ‘the Australian citizen’ and inserts ‘an Australian citizen’ in clause 801.111 of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to amend the definition of ‘sponsoring partner’ within clause 801.111 so as to remove ambiguity.
Item [8] – Schedule 2, clause 820.321
This item replaces current clause 820.321 with a new clause 820.321 of Schedule 2 to the Principal Regulations.
New clause 820.321 provides that a Subclass 820 (Partner) visa may be granted to a dependant following review of a decision to not grant that visa regardless of whether the primary applicant has already been granted the Subclass 801 (Partner) visa (subject to the applicant meeting all other relevant criteria).
Item [9] – Schedule 2, subclause 835.111
This item replaces the current note following subclause 835.111 of Schedule 2 to the Principal Regulations with a new note.
The new note following subclause 835.111 includes ‘Australian relative’ in front of ‘dependent child’, thereby indicating that ‘Australian relative’ is defined in regulation 1.03.
This is a consequential amendment due to item [1] of Schedule 4 to the Regulations, which inserts the definition of ‘Australian relative’ into regulation 1.03 of Part 1 to the Principal Regulations.
This amendment also adds a reference to regulation 2.03A in regard to the note reference for ‘de facto partner’.
Item [10] – Schedule 2, paragraph 864.212(b)
This item replaces existing paragraph 864.212(b) with a new paragraph 864.212(b) of Schedule 2 to the Principal Regulations. This item also inserts new paragraphs 864.212(c) and (d) of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to extend the age concession to holders or former holders of substituted Subclass 676 (Tourist) visas who are seeking to transition from the temporary Contributory Aged Parent visa to the permanent Contributory Aged Parent visa. As such, a holder or former holder of a substituted Subclass 676 (Tourist) visa does not have to meet the age requirement for a permanent Contributory Aged Parent visa.
This amendment is also to simplify clause 864.212 and to make it easier to read. Current paragraph 864.212(b) is very difficult to read, as it used “either” and “both” together and was overly broken down into subparagraphs, sub-subparagraphs and sub-sub-subparagraphs. New paragraph 864.212(b) is accordingly restructured into new paragraphs (b) and (c) in order to allow the consideration of the characteristics of each ‘eligible’ person separately in order to improve readability.
Item [11] – subclause 864.222, including the note
This item omits each mention of ‘subclause 864.212(2) or (3)’ and inserts ‘subclause 864.213 (2) or (3)’ in clause 864.222 of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to correct an error in these references.
Item [12] – Schedule 2, paragraph 864.222A(c)
This item omits ‘subclause 864.212(2) or (3)’ and inserts ‘subclause 864.213 (2) or (3)’ in paragraph 864.222A(c) of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to correct an error in these references.
Schedule 5 – Amendments relating to Bridging F (Class WF) visas
Item [1] – Subregulation 2.20B(2)
This item amends subregulation 2.20B(2) of Part 2 to the Principal Regulations.
New subregulation 2.20B(2) clarifies that an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen to whom subregulation 2.20(15) applies or to a person to whom subregulation 2.20(15) would have applied except that they have been immigration cleared. The policy intention is that both groups of persons, regardless of whether the non-citizen has been immigration cleared, are able to make a valid application under subregulation 2.20B using the invitation mechanism.
Regulation 2.20 is made under section 72 of the Migration Act 1958, which defines the term eligible non-citizen. Only eligible non-citizens can be granted bridging visas. The definition in section 72 provides that an eligible non-citizen is a non-citizen who has been immigration cleared, or a non-citizen in a prescribed class of persons. Regulation 2.20 prescribes these classes of persons. The policy intention is that persons who are eligible non-citizens because they have been immigration cleared will also be able to use the invitation mechanism prescribed in regulation 2.20B.
Amendments were made to subregulation 2.20B(2) by the Migration Legislation Amendment Regulations 2009 (No. 2), with the intention of simplifying and clarifying the wording used in subregulation 2.20B(2) to make clearer the policy intention. However those changes, which commenced on 1 July 2009, inadvertently changed the effect of the provision such that it arguably no longer achieves the policy intention. That is, it arguably leaves unclear the position of non-citizens, described in subregulation 2.20(15), who have been immigration cleared.
The purpose of this further amendment to subregulation 2.20B(2) is therefore to preserve the original policy intention (that persons described in subregulation 2.20(15) and persons to whom 2.20(15) would apply except that they have been immigration cleared are able to use subregulation 2.20B(2)), and to provide wording that is simpler to read and clearer than the pre- 1 July 2009 wording.
Item [2] – Schedule 2, paragraph 060.411(3)(a)
This item replaces current paragraph 060.411(3)(a) with a new paragraph 060.411(3)(a) of Schedule 2 to the Principal Regulations.
New paragraph 060.411(3)(a) makes reference to an applicant to whom subregulation 2.20(15) applies except that he or she has been immigration cleared. The policy intent is to ensure that persons who are eligible non citizens because they have been immigration cleared, are subject to 060.411(3)(a).
Amendments were made to paragraph 060.411(3)(a) by the Migration Legislation Amendment Regulations 2009 (No. 2), along with amendments to subregulation 2.20B(2), with the intention of simplifying and clarifying the wording used in those provisions to make clearer the policy intention. However those changes, which commenced on 1 July 2009, inadvertently changed the effect of the provisions such that they arguably no longer achieve the policy intention. That is, the changes arguably leave unclear the position of non-citizens, described in subregulation 2.20(15), who have been immigration cleared.
The purpose of this further amendment to paragraph 060.411(3)(a) is therefore to preserve the original policy intention (that persons described in subregulation 2.20(15) and persons to whom subregulation 2.20(15) would apply except that they have been immigration cleared, are subject to paragraph 060.411(3)(a)), and to provide wording that is simpler to read and clearer than the pre-1 July 2009 wording.
Item [3] – Schedule 2, subclause 060.511(2)
This item omits in the first line of subclause 060.511(2) of Schedule 2 to the Principal Regulations references to whom subregulation 2.20(15) would apply if he or she had been immigration cleared.
New subclause 060.511(2) provides that this subclause applies regardless of whether the person has been immigration cleared. The policy intent is to ensure that 060.511(2) will apply to persons to whom subregulation 2.20(15) applies and to persons to whom 2.20(15) would apply except that the person has been immigration cleared.
Amendments were made to subclause 060.511(2) by the Migration Legislation Amendment Regulations 2009 (No. 2), along with amendments to subregulation 2.20B(2), with the intention of simplifying and clarifying the wording used in those provisions to make clearer the policy intention. However those changes, which commenced on 1 July 2009, inadvertently changed the effect of the provisions such that they arguably no longer achieve the policy intention. That is, the changes arguably leave unclear the position of non-citizens, described in subregulation 2.20(15), who have been immigration cleared.
The purpose of this further amendment to subclause 060.511(2) is therefore to preserve the original policy intention (that persons described in subregulation 2.20(15), and persons to whom 2.20(15) would apply except that they have been immigration cleared, are subject to subclause 060.511(2)), and to provide wording that is simpler to read and clearer than the pre-1 July 2009 wording.
Schedule 6 – Amendments relating to visa application charges
Item [1] – Subregulation 2.12F(1), including the note
This item replaces current subregulation 2.12F(1) with a new subregulation 2.12F(1) in Part 2 to the Principal Regulations.
New subregulation 2.12F(1) provides that, in addition to the circumstances mentioned in subregulation 2.12F(2), the Minister must refund the first instalment of the visa application charge in relation to an application for a visa if either of the circumstances specified by the Minister in an instrument in writing exists.
The purpose of this amendment is to allow for a refund to be made without requiring a written request where circumstances beyond the control of the applicant, have left the applicant unable or unwilling to travel.
New subparagraph 2.12F(b)(i) provides
that the Minister must refund the first instalment of the visa application
charge in relation to an application for a visa if the Minister receives a
written request for a refund from a person listed in subregulation 2.12F(2A) or
if the Minister considers it reasonable in the circumstances to refund the
amount to that person without receiving a written request for a refund.
Subregulation 2.12F(2A) is inserted by item [6] of Schedule 6 to the
Regulations.
The effect of new subparagraph 2.12F(b)(ii) is that a refund may be made to a
person mentioned in subregulation 2.12F(2A) without the need for a written
request if the Minister considers it reasonable to do so in the circumstances.
The purpose of this amendment is to enable the Minister to consider making a refund without the need for a written request in exceptional circumstances, such as where a mistake has been made by the Department of Immigration and Citizenship.
Item [2] – Subregulation 2.12F(2)
This item replaces the reference to paragraph (1)(a) in subregulation 2.12F(2) of Part 2 to the Principal Regulations with a reference to subparagraph (1)(a)(i).
This amendment is consequential to item [1] of Schedule 6 to the Regulations, which inserts new subparagraph 2.12F(1)(a)(i), as the substance of existing paragraph 2.12(1)(a) would be in new subparagraph 2.12(1)(a)(i).
Item [3] – Paragraph 2.12F(2)(a)
This item replaces current paragraph 2.12F(2)(a) with a new paragraph 2.12F(2)(a) of Part 2 to the Principal Regulations.
This amendment ensures that a refund of the first instalment of the visa application charge must be made if the visa application was unnecessary at the time it was made.
Item [4] – Paragraph 2.12F(2)(e)
This item omits a full stop at the end of paragraph 2.12F(2)(e) of Part 2 to the Principal Regulations and substitutes a semicolon.
This amendment is consequential to the amendment in item [5] of Schedule 6 to the Regulations, which inserts new paragraphs (f) and (g) in subregulation 2.12F(2).
Item [5] – After paragraph 2.12F(2)(e)
This amendment inserts new paragraphs 2.12F(1)(f) and 2.12F(1)(g) in Part 2 to the Principal Regulations.
The effect of new paragraph 2.12F(1)(f) is to specify that the Minister must refund the first instalment of the visa application charge in relation to an application for a class of visa mentioned in subregulation 2.12F(2B) where the visa was refused because there was not an approved nomination in place that identified the applicant. New subregulation 2.12F(2B) is inserted by item [6] of Schedule 6 to the Regulations. An example of a visa that requires the applicant to be identified in a nomination to be eligible for grant is the Subclass 457 (Business (Long Stay)) visa in the Temporary Business Entry (Class UC) visa class.
The effect of new paragraph 2.12F(2)(g) is to specify that the Minister must refund the first instalment of the visa application charge in relation to an application for a class of visa mentioned in subregulation 2.12F(2B) where the applicant was not required to be identified in a nomination and the visa was refused because the applicant did not have an approved sponsor. An example of a visa that does not require the applicant to be identified in an approved nomination, but requires the applicant to have an approved sponsor to be eligible for grant, is the Subclass 416 (Special Program) visa in the Cultural/Social (Temporary) (Class TE) visa class.
The purpose of this amendment is to allow for a refund of the first VAC instalment where a nomination or (where the applicant is not required to be identified in a nomination) a sponsorship application is refused, causing the visa application to fail through no fault of the visa applicant.
Item [6] – After subregulation 2.12F (2)
This item inserts new subregulations 2.12F(2A) and 2.12F(2B) after subregulation 2.12F(2) of Part 2 to the Principal Regulations.
The effect of new subregulation 2.12F(2A), combined with new subparagraph 2.12F(1)(b)(i), is that the written request for a refund of the first instalment of the visa application charge must be made by:
· the person who paid the visa application charge (the ‘payer’); or
· where the payer has died or has a serious physical or mental incapacity, the payer’s personal legal representative; or
· where the payer is bankrupt, the payer’s trustee.
Subregulation 2.12F(2A) reflects existing paragraph 2.12F(1)(b), which currently lists the same categories of person who must request the refund.
A note following subregulation 2.12F(2A) advises the reader to refer to regulation 2.12K in relation to who is the person who pays an amount by way of an instalment of visa application charge.
The effect of new subregulation 2.12F(2B) is to specify the visa classes and subclass for the purpose of new paragraphs 2.12F(2)(f) and (g) which are inserted by item [5] of Schedule 6 to the Regulations. The eligibility criteria for the visa classes and subclass listed in new subregulation 2.12F(2B) require an applicant to be nominated or sponsored by an approved sponsor.
Item [7] – Subregulation 2.12F(4), (5) and (6)
This item replaces current subregulations 2.12F(4), (5) and (6) with new subregulations 2.12F(4), (5) and (6) in Part 2 to the Principal Regulations.
The effect of new subregulation 2.12F(4) is that where a request for a refund is made on the basis that the applicant died before a decision was made on the application, the Minister must not issue a refund unless the request is accompanied by satisfactory evidence of the applicant’s death. Existing paragraph 2.12F(2)(c) provides for a refund where the applicant dies before a decision is made on the application.
New subregulation 2.12F(4) clarifies the wording of existing subregulation 2.12F(4) and also ensures that where a request for refund is made on the basis that the applicant is dead, the Minister or his delegate must be satisfied of the applicant’s death based on the evidence according to Australian law.
The effect of new subregulation 2.12F(5) is that where a request for a refund is made by the personal legal representative of a payer on the basis that the payer has died, the request must be accompanied by satisfactory evidence of the payer’s death. ‘Payer’ is defined in new subregulation 2.12F(2A) inserted by item [6] of Schedule 6 to the Regulations to mean the person who paid the visa application charge.
The purpose of this amendment is to ensure that where a request for refund is made on the basis that the payer is dead, the Minister or his delegate must be satisfied of the applicant’s death based on the evidence according to Australian law.
The effect of new subregulation 2.12F(6) is that a refund under regulation 2.12F must be paid to the person who made the request for the refund, or if the refund is to be paid in the absence of a written request, to a person listed in subregulation 2.12F(2A) (which is inserted by item [6] of Schedule 6 to the Regulations), or to a person mentioned in paragraphs 2.12F(6)(a) or 2.12F(6)(b) for payment to the applicant’s deceased estate.
The purpose of this amendment is to ensure that a refund payable under this provision is made to an appropriate person upon receipt of evidence of the death of the applicant or payer.
Item [8] – Subparagraph 2.12F(7)(b)(ii)
This item replaces current references to subparagraphs (1)(ii) or (iii) in subparagraph 2.12F(7)(b)(ii) of Part 2 to the Principal Regulations, with references to paragraphs (2A)(b) or (c).
This amendment is consequential to item [6] of Schedule 6 to the Regulations, which inserts new subregulation 2.12F(2A) in the Principal Regulations, because the substance of existing subparagraph 2.12F(b)(ii) and (iii) would be in new paragraphs 2.12F(2A)(b) and (c).
Item [9] – Paragraph 2.12H(2)(e)
This item omits a full-stop at the end of paragraph 2.12H(2)(e) of Part 2 to the Principal Regulations and substitutes a semicolon.
This amendment is consequential to item [10] of Schedule 6 to the Regulations, which inserts new paragraphs 2.12H(2)(f) and 2.12H(2)(g) in subregulation 2.12H(2).
Item [10] – After paragraph 2.12H(2)(e)
This item inserts new paragraphs 2.12(2)(f), (2)(g), (2)(h) and (2)(i) after paragraph 2.12(2)(e) of Part 2 to the Principal Regulations.
The effect of new paragraph 2.12F(2)(f) is that where a visa applicant dies before commencing a course of English language tuition, to which the applicant is entitled under section 4C of the Immigration Education Act 1971, the Minister must refund the amount paid by way of a second instalment of the visa application charge. Section 4C of the Immigration Education Act 1971 provides that the Commonwealth has an obligation to provide or arrange the provision of 510 hours of English language tuition to certain people who have paid, or are exempt from paying, the relevant visa application charge.
The effect of new paragraph 2.12F(2)(g) is that where the visa granted is later cancelled before the applicant commences a course of English language tuition, to which the applicant is entitled under section 4C of the Immigration Education Act 1971, the Minister must refund the amount paid by way of a second instalment of the visa application charge.
The effect of new paragraph 2.12F(2)(h) is that where the visa is granted and ceases to have effect before the applicant commences a course of English language tuition, to which the applicant is entitled under section 4C of the Immigration Education Act 1971, the Minister must refund the amount paid by way of a second instalment of the visa application charge.
The effect of new paragraph 2.12F(2)(i) is that the Minister must refund the amount paid by way of a second instalment of the visa application charge where the Commonwealth’s obligation to provide, or arrange the provision of, English language tuition to a visa applicant ceases by operation of paragraph 4D(1)(a) of the Immigration Education Act 1971 without the applicant receiving any English language tuition.
Currently regulation 2.12I (which would be omitted by item [13] of Schedule 6 To the Regulations) provides that the Minister may make a partial refund of the second instalment of the visa application charge in similar circumstances. The purpose of this amendment is to provide for a full refund of the second visa application charge where an applicant has not commenced an English language course to which they are entitled under the Immigration (Education) Act 1971.
Item [11] – After subregulation 2.12H(2)
This item inserts new subregulation 2.12H(2A) after subregulation 2.12H(2) to the Principal Regulations.
This amendment provides that paragraph (2)(h) does not apply where the Commonwealth’s obligation to provide, or arrange the provision of, English language tuition to a visa applicant ceases by operation of paragraph 4D(1)(b), (c) or (d), or subsection 4D(2), of the Immigration Education Act 1971. Section 4D of the Immigration Education Act 1971 sets out the circumstances in which the Commonwealth’s obligation to provide English language tuition will cease.
The purpose of this amendment is to preserve the existing policy in subregulation 2.12I(3), which would be repealed by item [13] of Schedule 6 to the Regulations. Existing subregulation 2.12I(3) is the same in substance to new subregulation 2.12H(2A) but relates to a partial refund of the visa application charge rather than a full refund. The amendments made by item [10] of Schedule 6 to the Regulations allow for a full refund of the visa application charge in circumstances relating to the provision of English language tuition under the Immigration Education Act 1971.
Item [12] – Subregulations 2.12H(4), (5) and (6)
This item replaces subregulations 2.12H(4), 2.12H(5) and 2.12H(6) with new subregulations 2.12H(4), 2.12H(5) and 2.12H(6) of Part 2 to the Principal Regulations.
The effect of new subregulation 2.12H(4) is that if a request for a refund of the second instalment of the visa application charge is made on the basis that the applicant died, either before entering Australia as the holder of the visa, or before commencing a course of English language tuition to which the applicant is entitled under section 4C of the Immigration Education Act 1971, the request for a refund must be accompanied by satisfactory evidence of the applicant’s death.
The effect of new subregulation 2.12H(5) is that if the request for a refund is made by the personal legal representative of a payer on the basis that the payer has died, the request must be accompanied by satisfactory evidence of the payer’s death. “Payer” is defined in existing subparagraph 2.12H(1)(b)(i) to mean the person who paid the visa application charge.
The purpose of this amendment is to ensure that where a request for refund is made on the basis that the applicant, or the payer is dead, the Minister or his delegate must be satisfied of the applicant’s death based on the evidence according to Australian law.
Item [13] – Regulation 2.12I
This item repeals regulation 2.12I of Part 2 to the Principal Regulations.
This item is a consequential amendment to item [10] of Schedule 6 to the Regulations, which incorporates the provisions of regulation 2.12I (relating to a partial refund of the second instalment of the visa application charge) into regulation 2.12H, which provides for a full refund of the second instalment of the visa application charge.
Item [14] – Subregulation 2.12J(2)
This item replaces subregulation 2.12J(2) with a new subregulation 2.12J(2) of Part 2 to the Principal Regulations.
The effect of new subregulation 2.12J(2) is that if a request for refund is made by the personal legal representative of a payer on the basis that the payer has died, the request must be accompanied by satisfactory evidence of the payer’s death. “Payer” is defined in existing subparagraph 2.12J(1)(c)(i) to mean the person who paid the visa application charge.
The purpose of this amendment is to ensure that where the applicant or the payer is dead, the evidence of death adduced in support must satisfy the requirements of the law in Australia and not the requirements of foreign legislation in cases where the request for a refund is made at an overseas post.
Item [15] – Regulation 2.12K
This item omits reference to regulations 2.12H and 2.12I and inserts a reference to regulation 2.12H at regulation 2.12K of Part 2 to the Principal Regulations.
This item is a consequential amendment to item [13] of Schedule 6 to the Regulations, which repeals regulation 2.12I from the Principal Regulations.
Item [16] – After regulation 2.12K
This item inserts new regulation 2.12L after regulation 2.12K of Part 2 in the Principal Regulations.
The effect of new regulation 2.12L is that for the purpose of regulations 2.12F, 2.12H and 2.12J, a person is taken to be the personal legal representative of a payer (the person who pays the visa application charge) if the person provides satisfactory evidence to the Minister that the person is the personal legal representative of the payer and the Minister is satisfied, based on the evidence provided by that person, that he or she is the personal legal representative.
The purpose of this amendment is to require a legal representative to give satisfactory evidence that they are the legal representative of the payer.
Item [17] – Schedule 8A
This item repeals Schedule 8A to the Principal Regulations.
Schedule 8A sets out the relevant amount for a partial refund for the purposes of subregulation 2.72I(7) of the Principal Regulations. Regulation 2.72I is repealed by item [13] of Schedule 6 to the Regulations, making Schedule 8A redundant.