MIGRATION AMENDMENT REGULATIONS 2009 (NO. 14) (SLI NO 331 OF 2009) EXPLANATORY STATEMENT

EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 331

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2009 (No. 14)

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:

· rectify a typographical error in column 3 of item 6B102 of Schedule 6B to the Principal Regulations. The amendment replaces the reference to the total number of points awardable for partner skills qualifications from “15” points to “5” (Schedule 1 to the Regulations refers);

· ensure that Subclass 457 (Business (Long Stay)) visa holders who are currently being paid an Information and Communication Technology (ICT) minimum salary level cannot have their salary cut from 1 January 2010, by preserving the minimum salary level as the base rate of pay after 1 January 2010 where a nomination was approved prior to 14 September 2009 (Schedule 2 to the Regulations refers);

· allow the amount a student or student guardian visa applicant must have for the living costs component of the financial capacity requirements to be amended by an instrument in writing (Schedule 3 to the Regulations refers);

· enable the Minister for Immigration and Citizenship (the Minister) or delegate to decide that an applicant does not genuinely have access to the funds that are declared or demonstrated as part of the financial capacity requirement for grant of a student or student guardian visa (Schedule 3 to the Regulations refers); and

· allow student visa holders and their guardians who have been directly affected by the closure of their education provider to lodge a student visa application without paying a visa application charge in order to facilitate the student continuing their studies in Australia (Schedule 4 to the Regulations refers).

Details of the Regulations are set out in Attachment B.

Schedule 1 to the Regulations commences on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

Schedules 2 to 4 to the Regulations commence on 1 January 2010.

In relation to the amendments made by Schedule 1 to the Regulations, 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.

In relation to the amendments made by Schedules 2 to 4 to the Regulations the Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there would be low compliance cost on business and low other impacts on competition in relation to these amendments.

In relation to Schedule 1 no consultation was necessary because the amendment is minor and technical in nature.

The Department of Education, Employment and Workplace Relations was consulted in relation to Schedule 2.

In relation to Schedule 3, the following government departments were consulted:

 Department of Prime Minister and Cabinet;

 Department of Finance and Deregulation;

 Department of Education, Employment and Workplace Relations; and

 Department of Treasury.

In relation to Schedule 4, the following government departments were consulted:

 Department of Prime Minister and Cabinet;

 Department of Finance and Deregulation; and

 Department of Education, Employment and Workplace Relations.

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

ATTACHMENT A

In addition to subsection 504(1), the following provisions may apply:

· 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 (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 36, 37, or 37A but not by sections 33, 34, 35 or 38 of the Act);

· subsection 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 45B(2) of the Act which provides that the amount prescribed in relation to a visa application may be nil;

· subsection 46(3) of the Act, which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

· subsection 93(1), which provides that an assessment shall be made by the Minster to award the applicant the prescribed number of points for each prescribed qualification, as satisfied by the applicant; and

· section 140H of the Act, which deals with sponsorship obligations, in particular:

o subsection 140H(1) of the Act, which provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.

ATTACHMENT B

Details of the Migration Amendment Regulations 2009 (No. 14).

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 14).

Regulation 2 – Commencement

Paragraph 2(a) provides that regulations 1 to 3 and Schedule 1 commence on the day after registration.

Paragraph 2(b) provides that regulations 4 to 6 and Schedules 2 to 4 commence on 1 January 2010.

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 amendment made by Schedule 1 applies in relation to an application for a visa made on or after the day on which this regulation commences or made but not finally determined (within the meaning of subsection 5(9) of the Act) before the day on which the Regulations commence.

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 (MRT) or the Refugee Review Tribunal.

The purpose of these transitional provisions is to provide that the amendment applies to all new and existing applications for a Subclass 475 (Skilled – Regional Sponsored) visa that have not been finally determined by the Minister on the day of commencement. The amendment also applies to any applications which have not been finally determined by the MRT upon the day of commencement.

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

This regulation provides that the Principal Regulations are amended as set out in Schedule 2.

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.

Subreuglation 5(2) provides that the amendments made by Schedule 3 apply in relation to an application for a visa made on or after 1 January 2010.

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 Schedule 4 apply in relation to an application for a visa made on or after 1 January 2010 and a provider default occurring on or after 1 January 2010.

Schedule 1 – Amendments – partner skill qualification

Item [1] – Schedule 6B, Part 6B.10, item 6B102, column 3

This item omits the reference to “15” and inserts “5” from column 3 of item 6B102 in Part 6B.10 to the Principal Regulations.

The purpose of this amendment is to rectify a typographical error which has resulted in the item listing an incorrect number of points for the corresponding partner skill qualifications.

Schedule 2 – Amendments – conditions of employment

Item [1] – Subregulation 2.57(1), definition of ASCO

This item substitutes the existing definition of ASCO in subregulation 2.57(1) in Part 2A to the Principal Regulations.

The current definition of ASCO in subregulation 2.57(1) provides that ASCO means the Australian Standard Classification of Occupations. The new definition of ASCO would include a specific reference to the “1220.0 Australian Standard Classification of Occupations (ASCO) Second Edition, 1997” released by the Australian Bureau of Statistics on 31 July 1997.”

The purpose of this amendment is to provide precision to the definition of ASCO.

Item [2] – Subregulation 2.57(1), after definition of government agency

This item inserts a definition of “information and communication technology activity” after the definition of “government agency” in subregulation 2.57(1) in Part 2A to the Principal Regulations.

The new definition provides that any of the following occupations as listed in the ASCO constitute an information and communication technology activity:

· 1224-11 Information Technology Manager – Computer Services Manager;

· 2231-11 Systems Manager;

· 2231-13 Systems Designer;

· 2231-15 Software Designer;

· 2231-17 Applications and Analyst Programmer;

· 2231-19 Systems Programmer;

· 2231-21 Computer Systems Auditor; or

· 2231-79 Computing Professionals (not elsewhere classified).

The definition of ASCO is amended by item [1] of this Schedule.

The term “information and communication technology” is used in the amendments to subregulation 2.79(3) made by items [3] and [4] of this Schedule.

Item [3] – Subparagraph 2.79(3)(b)(iii)

This item substitutes existing subparagraph 2.79(3)(b)(iii) and inserts a new subparagraph 2.79(3)(b)(iv) in Part 2A of the Principal Regulations.

Subregulation 2.79(3) provides in part that a person who is or was a standard business sponsor must ensure that certain terms of conditions of employment, or certain base rates of salary, are paid to a primary sponsored person depending on the provision under which the person’s nomination was approved.

The amendment in this item provides that paragraph 2.79(3)(b) applies where the activity mentioned in subparagraph 2.79(3)(b)(ii) is an activity other than an information and communication technology activity.

The purpose of this amendment is to clarify that if persons fall within paragraph 2.79(3)(b) then paragraph 2.79(3)(ba) does not apply.

Item [4] – After paragraph 2.79(3)(b)

This item inserts a new paragraph 2.79(3)(ba) in regulation 2.79 in Part 2A of the Principal Regulations.

New paragraph 2.79(3)(ba) provides that in circumstances where:

· the person making the nomination is or was a standard business sponsor of a primary sponsored person;

· the nomination by the person of an information and communication technology activity under regulation 1.20GA (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

· paragraph 2.79(3)(d) (which relates to certain nominations involving a Subclass 457 visa applicant who is exempted from the English language proficiency requirement on the basis they will be paid a certain salary level, and where the granting of the visa would be in the interests of Australia) does not apply,

the person who is, or was, a standard business sponsor must ensure that the primary sponsored person’s base rate of pay is no less than $55,725.

Subregulation 2.79(2A) of the Principal Regulations provides, in part, that between 14 September 2009 and 1 January 2010, a person who made a nomination that was approved under regulation 1.20H (as in force immediately before 14 September 2009) need not satisfy subregulation 2.79(3). Instead, the person must ensure that the Subclass 457 visa holder’s salary is not less than the minimum salary level specified in an instrument in writing. This maintained the requirement that was in place prior to 14 September 2009 for standard business sponsors whose nominations were approved prior to 14 September 2009. From 1 January 2010, the requirement to pay the minimum salary level ceases and subregulation 2.79(3) applies.

Subregulation 2.79(2A) provides for a short transitional period in respect of visa holders who were nominated prior to 14 September 2009. Subregulation 2.79(2A) allows existing sponsors of Subclass 457 visa holders time to adjust to the new sponsorship obligation to ensure equivalent terms and conditions of employment.

The effect of this amendment is to ensure that a Subclass 457 visa holder whose nominated activity is an information and communications technology activity is paid at least a salary level of $55 725 after 1 January 2010. This is the same salary that was required to be paid for information and communications technology activities under the instrument specifying the minimum salary level and therefore maintains the status quo in relation to these occupations.

Item [5] – Subparagraph 2.79(3)(c)(iii)

This item provides in subparagraph 2.79(3)(c)(iii) that the activity mentioned in subparagraph 2.79(3)(c)(ii) is an activity other than an information and communication technology activity.

The amendment in this item provides that paragraph 2.79(3)(c) applies where the activity mentioned in subparagraph 2.79(3)(c)(ii) is an activity other than an information and communication technology activity.

The purpose of this amendment is to clarify that if persons fall within paragraph 2.79(3)(c) then paragraph 2.79(3)(ca) does not apply.

Item [6] - After paragraph 2.79(3)(c)

This item inserts a new paragraph 2.79(3)(ca) in regulation 2.79 in Part 2A to the Principal Regulations.

Regulation 2.79 came into effect on 14 September 2009 and sets out the obligation to ensure that equivalent terms and conditions of employment are provided to a person who holds (or held) a Subclass 457 visa. Subregulation 2.79(3) provides in part that a person who is or was a standard business sponsor must ensure that certain terms of conditions of employment, or certain base rates of salary, are paid to a primary sponsored person depending on the provision under which the person’s nomination was approved.

New paragraph 2.79(3)(ca) provides that in circumstances where:

· the person making the nomination is or was a standard business sponsor of a primary sponsored person; and

· the nomination by the person of an information and communication technology activity under regulation 1.20G (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

· paragraph 2.79(3)(d) (which relates to certain nominations involving a Subclass 457 visa applicant who is exempted from the English language proficiency requirement on the basis they will be paid a certain salary level where the granting of the visa would be in the interests of Australia) does not apply,

the person who is or was a standard business sponsor must ensure that the primary sponsored person’s base rate of pay is no less than $61,920.

Subregulation 2.79(2A) of the Principal Regulations provides in part that between 14 September 2009 and 1 January 2010, a person who made a nomination that was approved under regulation 1.20H (as in force immediately before 14 September 2009) need not satisfy subregulation 2.79(3). Instead, the person must ensure that the Subclass 457 visa holder’s salary is not less than the minimum salary level specified in an instrument in writing. This maintained the requirement that was in place prior to 14 September 2009 for standard business sponsors whose nominations were approved prior to 14 September 2009. From 1 January 2010, the requirement to pay the minimum salary level ceases and subregulation 2.79(3) applies.

The effect of this amendment is to ensure that a Subclass 457 visa holder whose nominated activity is an information and communications technology activity is paid at least a salary level of $61 920 after 1 January 2010. This is the same salary that was required to be paid for information and communications technology activities under the instrument specifying the minimum salary level and therefore maintains the status quo in relation to these occupations.

Schedule 3 – Amendments – financial requirements for students

Item [1] – Schedule 2, subparagraph 570.223(2)(b)(ii)

This item omits the word “matter” and insert “matter; and” in subparagraph 570.223(2)(b)(ii) of Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 570.223(2)(c), item [2] below, to be inserted.

Item [2] – Schedule 2, after paragraph 570.223(2)(b)

This item inserts a new paragraph 570.223(2)(c) in Schedule 2 to the Principal Regulations.

New paragraph 570.223(2)(c) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A to the Principal Regulations specifies that the applicant for a prescribed student visa subclass must have sufficient funds to meet; for a specified period of study; course fees, living costs, school and travel costs.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [3] – Schedule 2, paragraph 570.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 570.326(c) of Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 570.326(d), item [4] below, to be inserted.

Item [4] – Schedule 2, after paragraph 570.326(c)

This item inserts a new paragraph 570.326(d) in Schedule 2 to the Principal Regulations.

New paragraph 570.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [5] – Schedule 2, paragraph 570.613(3)(b)

This item substitutes existing paragraph 570.613(3)(b) of Schedule 2 to the Principal Regulations.

Current paragraph 570.613(3)(b) provides that the visa applicant must have evidence of a further $12,000 in funds from an acceptable source.

New paragraph 570.613(3)(b) provides that the visa applicant must have a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source.

The purpose of this amendment is to provide an amount in an instrument in writing which could be regularly updated. Whilst not directly related to the living costs amount, the amount specified by the Minister in an instrument in writing for this paragraph may be increased at the same rate and at the same time as any living costs increase.

Item [6] – Schedule 2, sub-subparagraph 571.223(2)(a)(ii)(B)

This item omits the word “matter; or” and inserts “matter; and” in sub-subparagraph 571.223(2)(a)(ii)(B) of Schedule 2 to the Principal Regulations.

This amendment allows for a further subparagraph 571.223(2)(a)(iii), item [7] below, to be inserted.

Item [7] – Schedule 2, after subparagraph 571.223(2)(a)(ii)

This item inserts a new subparagraph 571.223(2)(a)(iii) in Schedule 2 to the Principal Regulations.

New subparagraph 571.223(2)(a)(iii) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity while they hold a student visa.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A of the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [8] – Schedule 2, paragraph 571.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 571.326(c) of Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 571.326(d), item [9] below, to be inserted.

Item [9] – Schedule 2, after paragraph 571.326(c)

This item inserts a new paragraph 571.326(d) in Schedule 2 of the Principal Regulations.

New paragraph 571.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are either demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [10] – Schedule 2, sub-subparagraph 572.223(2)(a)(ii)(B)

This item omits the word “matter; or” and inserts “matter; and” in sub-subparagraph 572.223(2)(a)(ii)(B) in Schedule 2 to the Principal Regulations.

This amendment allows for a further subparagraph 572.223(2)(a)(iii), item [11] below, to be inserted.

Item [11] – Schedule 2, after subparagraph 572.223(2)(a)(ii)

This item inserts a new subparagraph 572.223(2)(a)(iii) in Schedule 2 to the Principal Regulations.

New subparagraph 572.223(2)(a)(iii) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [12] – Schedule 2, paragraph 572.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 572.326(c) of Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 572.326(d), in item [13] below, to be inserted.

Item [13] – Schedule 2, after paragraph 572.326(c)

This item inserts a new paragraph 572.326(d) in Schedule 2 to the Principal Regulations.

New paragraph 572.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [14] – Schedule 2, paragraph 572.613(3)(b)

This item substitutes existing paragraph 572.613(3)(b) of Schedule 2 to the Principal Regulations.

Current paragraph 572.613(3)(b) provides that the visa applicant must have evidence of a further $12,000 in funds from an acceptable source.

New paragraph 572.613(3)(b) provides that the visa applicant must have a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source.

Item [15] – Schedule 2, sub-subparagraph 573.223(2)(a)(ii)(B)

This item omits “matter; or” and inserts “matter; and” in sub-subparagraph 573.223(2)(a)(ii)(B) in Schedule 2 to the Principal Regulations.

This amendment allows for a further subparagraph 573.223(2)(a)(iii) in item [16] below, to be inserted.

Item [16] – Schedule 2, after subparagraph 573.223(2)(a)(ii)

This item inserts a new subparagraph 573.223(2)(a)(iii) in Schedule 2 to the Principal Regulations.

New subparagraph 573.223(2)(a)(iii) requires the Minister to be satisfied that while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [17] – Schedule 2, paragraph 573.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 573.326(c) to Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 573.326(d), in item [18] below, to be inserted.

Item [18] – Schedule 2, after paragraph 573.326(c)

This item inserts a new paragraph 573.326(d) in Schedule 2 to the Principal Regulations.

New paragraph 573.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [19] – Schedule 2, paragraph 573.613(3)(b)

This item substitutes existing paragraph 573.613(3)(b) of Schedule 2 to the Principal Regulations.

Current paragraph 573.613(3)(b) provides that the visa applicant must have evidence of a further $12,000 in funds from an acceptable source.

New paragraph 573.613(3)(b) provides that the visa applicant must have a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source.

Item [20] – Schedule 2, sub-subparagraph 574.223(2)(a)(ii)(B)

This item omits the word “matter; or” and inserts “matter; and” in sub-subparagraph 574.223(2)(a)(ii)(B) in Schedule 2 to the Principal Regulations.

This amendment allows for a further subparagraph 574.223(2)(a)(iii), in item [21] below, to be inserted.

Item [21] – Schedule 2, after subparagraph 574.223(2)(a)(ii)

This item inserts a new subparagraph 574.223(2)(a)(iii) in Schedule 2 to the Principal Regulations.

New subparagraph 574.223(2)(a)(iii) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [22] – Schedule 2, paragraph 574.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 574.326(c) of Schedule 2 of the Principal Regulations.

This amendment allows for a further paragraph 573.326(d) in item [23] below, to be inserted.

Item [23] – Schedule 2, after paragraph 574.326(c)

This item inserts a new paragraph 574.326(d) in Schedule 2 to the Principal Regulations.

New paragraph 574.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [24] – Schedule 2, paragraph 574.613(3)(b)

This item substitutes existing paragraph 574.613(3)(b) of Schedule 2 to the Principal Regulations.

Current paragraph 574.613(3)(b) provides that the visa applicant must have evidence of a further $12,000 in funds from an acceptable source.

New paragraph 574.613(3)(b) provides that the visa applicant must have a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source.

Item [25] – Schedule 2, subparagraph 575.223(2)(b)(ii)

This item omits the word “matter” and inserts “matter; and” in sub-subparagraph 575.223(2)(b)(ii) in Schedule 2 to the Principal Regulations.

This amendment allows for a further subparagraph 575.223(2)(c), in item [26] below, to be inserted .

Item [26] – Schedule 2, after subparagraph 575.223(2)(b)

This item inserts a new subparagraph 575.223(2)(c) in Schedule 2 of the Principal Regulations.

New subparagraph 575.223(2)(c) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [27] – Schedule 2, paragraph 575.326(c)

This item omits the word “granted” and inserts “granted; and” in paragraph 575.326(c) of Schedule 2 to the Principal Regulations.

This amendment allows for a further paragraph 575.326(d) in item [28] below, to be inserted.

Item [28] – Schedule 2, after paragraph 575.326(c)

This item inserts a new paragraph 575.326(d) in Schedule 2 to the Principal Regulations.

New paragraph 575.326(d) requires the Minister to be satisfied that if an applicant is required to give evidence in accordance with Schedule 5B, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [29] – Schedule 2, paragraph 575.613(3)(b)

This item substitutes existing paragraph 575.613(3)(b) of Schedule 2 to the Principal Regulations.

Current paragraph 575.613(3)(b) provides that the visa applicant must have evidence of a further $12,000 in funds from an acceptable source.

New paragraph 575.613(3)(b) provides that the visa applicant must have a further amount, specified by the Minister in an instrument in writing for this paragraph, in funds from an acceptable source.

Item [30] – Schedule 2, subparagraph 576.222(2)(b)(ii)

This item omits the word “matter” and inserts “matter; and” in sub-subparagraph 576.222(2)(b)(ii) in Schedule 2 of the Principal Regulations.

This amendment allows for a further paragraph 576.222(2)(c), in item [31] below, to be inserted.

Item [31] – Schedule 2, after paragraph 576.222(2)(b)

This item inserts a new subparagraph 576.222(2)(c) in Schedule 2 to the Principal Regulations.

New paragraph 576.222(2)(c) requires the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A of the Principal Regulations specifies that the applicant for a prescribed student visa subclass must have sufficient funds to meet; for a specified period of study; course fees, living costs, school and travel costs.

The amendment requires the Minister to be satisfied that the applicant has genuine access to the funds declared under Schedule 5A to the Principal Regulations before granting the visa.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [32] – Schedule 2, subclause 576.333(2)

This item substitutes existing subclause 576.333(2) in Schedule 2 to the Principal Regulations.

New subclause 576.333(2) provides that if the visa applicant satisfies the criteria specified at subclause 576.333(1), the Minister must be satisfied that:

the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual; and
while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

New subclause 576.333(2) maintains the current subclause 576.333(2) and includes a further criterion which would require the Minister to be satisfied that, while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5B.

Schedule 5B prescribes the evidentiary requirements for student visas in relation to secondary applicants.

The amendments ensure that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

Item [33] – Schedule 2, clause 580.111, definition of living costs, paragraph (a)

This item omits the words “$12 000 per year” in the definition of living costs in clause 580.111 in Schedule 2 to the Principal Regulations and inserts “an amount specified by the Minister in an instrument in writing for this paragraph”.

The purpose of this amendment is to provide an amount in an instrument in writing which could be regularly updated to more accurately reflect living cost contributions as they change in Australia over time.

Item [34] – Schedule 2, subclause 580.226(1)

This item substitutes existing subclause 580.226(1) in Schedule 2 of the Principal Regulations. This item also inserts new subclauses 580.226(1A) and (1B) following subclause 580.226(1) in Schedule 2 of the Principal Regulations.

New subclause 580.226(1) provides that the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian because the applicant meets the requirements of new subclause 580.226(1A) or (1B).

New subclause 580.226(1A) provides that the applicant satisfies the requirements of this subclause if the applicant is not a person designated under regulation 2.07AO and

the applicant gives the Minister evidence relating to the applicant’s financial capacity in accordance with subclause 580.226(2), (3), (4) or (5); and
the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa was granted and any other relevant matter; and
the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with subclause 580.226(2), (3), (4) or (5).

The purpose of this amendment is to simplify subclause 580.226(1) and make this provision easier to read while adding the additional criterion for the Minister to be satisfied that, while the applicant holds the visa, the applicant will have access to the funds that the applicant demonstrated or declared in accordance with subclause 580.226(2), (3), (4) or (5).

The additional criterion ensures that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold a student visa.

New subclause 580.226(1B) provides that the applicant meets the requirements of this subclause if the applicant is a person designated under regulation 2.07AO and:

· the Minister is satisfied that the applicant has access to sufficient funds to meet the costs and expenses required to support the applicant during the proposed stay in Australia as well as the costs and expenses required to support each family applicant; and

· the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student guardian, having regard to the stated intention of the applicant to comply with conditions subject to which the visa was granted and any other relevant matter.

New subclause 580.226(1B) maintains the policy intention of current 580.226(1)(a)(ii) of Schedule 2 of the Principal Regulations. New subclause 580.226(1B) is inserted to simplify subclause 580.226(1) and make this provision easier to read.

Item [35] – Schedule 2, subclauses 580.226(2), (3), (4) and (5)

This item omits “paragraph (1)(a)” and inserts “paragraph (1A)(b)” in subclauses 580.226(2), (3), (4) and (5) in Schedule 2 of the Principal Regulations.

The purpose of these amendments is to clarify and give effect to the amendments made in item [34] outlined above.

Item [36] – Schedule 5A, subclause 5A104(1), table

This item omits each mention of “12 000 per year” and inserts “an amount specified by the Minister in an instrument in writing for this clause” in the table in subclause 5A104(1) in Schedule 5A to the Principal Regulations.

The purpose of this amendment is to provide an amount specified by the Minister in an instrument in writing for this clause which could be regularly updated to more accurately reflect living cost contributions as they change in Australia over time.

Item [37] – Schedule 5A, paragraph 5A302(b)

This item omits “$12 000” and inserts “an amount specified by the Minister in an instrument in writing for this paragraph in paragraph 5A302(b) of Schedule 5A to the Principal Regulations.

Item [38] – Schedule 5B, paragraph 5B102(1)(a)

This item omits “$12 000 per year” and inserts “an amount specified by the Minister in an instrument in writing for this paragraph” in paragraph 5B102(1)(a) in Schedule 5B to the Principal Regulations.

The purpose of this amendment is to provide an amount specified by the Minister in an instrument in writing which could be regularly updated to more accurately reflect living cost contributions as they change in Australia over time.

Schedule 4 – Amendments – students affected by college closures

Item [1] – Regulation 1.03, after definition of aged parent

This item amends regulation 1.03 of Part 1 to the Principal Regulations by inserting a new definition of agreed starting day.

The definition of agreed starting day provides that the agreed starting day for a registered course means the day on which the course was scheduled to start or a later day agreed between the education provider and a student.

The purpose of this amendment is to set a specific day as an agreed starting day for a registered course for the purposes of determining when a provider default would occur.

Item [2] – Regulation 1.03, after definition of proliferation of weapons of mass destruction

This item amends regulation 1.03 of Part 1 to the Principal Regulations by inserting new definitions of provider default and provider default day.

The definition of provider default provides that, in relation to a registered course, means the occurrence of one of the following events because a sanction has been imposed on the education provider under Division 1 or Division 2 of Part 6 of the Education Services for Overseas Students Act 2000:

· the course does not start on the agreed starting day;

· the course ceases to be provided at any time after it starts, but before it is completed;

· the course not being provided in full to the student.

The purpose of this amendment is to outline the events which would result in a provider default by an education provider occurring.

The definition of provider default day is determined, in relation to a registered course for which provider default has occurred, by one of the following events:

if the default occurred because the course did not start on the agreed starting day – the agreed starting day; or
if the default occurred because the course ceases to be provided at any time after it starts but before it is completed, or, the course was not provided in full to the student – the day on which the course ceased to be provided.

The purpose of this amendment is to provide a specified point in time when the provider default day occurs.

Item [3] – Schedule 1, sub-subparagraph 1222(2)(a)(i)(G)

This item omits the words “a student visa: Nil.” and inserts “a student visa; or” in sub-subparagraph 1222(2)(a)(i)(G) of Schedule 1 to the Principal Regulations.

This amendment allows further criteria to be prescribed under sub-subparagraph 1222(2)(a)(i)(G), item [4] below.

Item [4] – Schedule 1, after sub-subparagraph 1222(2)(a)(i)(G)

This item inserts new sub-subparagraphs 1222(2)(a)(i)(H) and (I) after sub-subparagraph 1222(2)(a)(i)(G) of Schedule 1 to the Principal Regulations.

New sub-subparagraph 1222(2)(a)(i)(H) provides that a student to whom new paragraph 1222(2)(aa) applies (discussed in item [5] below) will have a nil visa application charge.

New sub-subparagraph 1222(2)(a)(i)(I) provides that an applicant for a Subclass 580 visa to whom new paragraph 1222(2)(ab) applies (discussed in item [5] below) will have a nil visa application charge.

Item [5] – Schedule 1, after paragraph 1222(2)(a)

This item inserts new paragraphs 1222(2)(aa) and (ab) after paragraph 1222(2)(a) in Schedule 1 to the Principal Regulations.

New paragraph 1222(2)(aa) applies to a student if:

the student was not able to complete a registered course due to provider default; and
there is satisfactory evidence that the student was enrolled in that course on the provider default day; and
the student holds a student visa or their last substantive visa was a student visa; and
the student requires a visa to allow him or her to complete an alternative registered course or 1 or more registered courses after an alternative registered course; and
the student’s visa application is made no later than 12 months after the provider default day; and
the student has not made a previous application to which this paragraph applied because of the same provider default.

The purpose of new paragraph 1222(2)(aa) is that it allows a student who has been affected by a college closure to be granted a new student visa without having to pay a visa application charge.

New paragraph 1222(2)(ab) applies to a person who is an applicant for a Subclass 580 visa if:

the nominating student was not able to complete a registered course due to provider default; and
there is satisfactory evidence that the nominating student was enrolled in that course on the provider default day; and
the nominating student holds a student visa or their last substantive visa was a student visa; and
the nominating student requires a visa to allow him or her to complete an alternative registered course or 1 or more registered courses after an alternative registered course; and
the person’s visa application is made no later than 12 months after the provider default day; and
the person has not made a previous application to which this paragraph applied because of the same provider default.

The purpose of new paragraph 1222(2)(ab) is that it allows a guardian of a student who has been affected by a college closure to be granted a new Subclass 580 visa without having to pay a visa application charge.

Item [6] – Schedule 1, subclause 1222(5)

This item inserts “nominating student, for an applicant, means a person who nominates the applicant on form 157N” after “In this item:” at subclause 1222(5) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to provide a definition of nominating student for the purposes of new paragraph 1222(2)(ab).

Commonwealth Numbered Regulations - Explanatory Statements

Select Legislative Instrument 2009 No. 331