EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 38

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2010 (No. 1)

 

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 improve the operation of immigration policy.

In particular, the Regulations make the following amendments to the Principal Regulations:

·              allow for technical amendments to align definitions of the Principal Regulations with those in the Family Law Act 1975 (Schedule 1 to the Regulations refers);

·              reduce the minimum spouse or de facto relationship period in the Principal Regulations from five to three years to enable a greater number of applicants who are in well established relationships to have earlier access to a permanent visa (Schedule 1 to the Regulations refers);

·              prevent certain applicants from making a valid application for the Child (Residence) (Class BT) visa (Schedule 2 to the Regulations refers);

·              clarify the ground for cancellation of Subclass 457 (Business (Long Stay)) visas where false or misleading information has been provided (Schedule 3 to the Regulations refers);

·              clarify the sponsorship obligation that requires an approved sponsor to ensure that sponsored persons work or participate in a nominated occupation, program or activity (Schedule 3 to the Regulations refers);

·              amend condition 8107 to clarify the work limitations that apply to Subclass 457 (Business (Long Stay)) visas, depending on the criteria under which the visa holder was granted the visa (Schedule 3 to the Regulations refers);

·              clarify the health insurance requirement for Subclass 457 (Business (Long Stay)) visa applicants (Schedule 3 of the Regulations refers);

·              clarify transitional arrangements for the sponsorship requirements that must be met by secondary applicants for certain specialist entry visas (Schedule 3 to the Regulations refers);

·              make various minor and technical amendments in relation to the Subclass 457 (Business (Long Stay)) visa and specialist entry visas (Schedule 3 to the Regulations refers);

·              make minor changes to various parent category visa criteria which will better align the Principal Regulations with the objectives of family stream policy, and correct some unintended consequences of the current provisions (Schedule 4 to the Regulations refers);

·              require adequate English language proficiency for all nominations that identify a Subclass 442 (Occupational Trainee) visa holder or applicant (Schedule 5 to the Regulations refers);

 

·              require primary Subclass 442 (Occupational Trainee) visa applicants to have, or have access to, adequate means of support during the period of their intended stay in Australia (Schedule 5 to the Regulations refers);

 

·              specify where applicants for a Cultura/Social (Temporary) (Class TE) visa must be located at the time of application (Schedule 6 to the Regulations refers);

 

·              allow a Subclass 801 (Partner (Residence)) (Class BS) visa to be granted to an applicant outside Australia (Schedule 7 to the Regulations refers); and

 

·              amend who may sponsor an applicant for Partner (Temporary) (Class UK) visa (Schedule 7 of the Regulations refers).

Details of the Regulations are set out in the Attachment B.

The Regulations commence on 27 March 2010.

 

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

For Schedules 2, 3, 4, 5, 6 and 7 to the Regulations, no consultations were 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 Attorney-General’s Department was consulted in relation to the amendments made by Schedule 1 to the Regulations. No other external stakeholders were required to be consulted.

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

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;

·        subsection 41(1) of the Act, which provides that regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

·        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, which provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination; and

·        section 140H of the Act, which provides that the regulations may prescribe sponsorship obligations which an approved sponsor must satisfy.

 

 

 

 

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Regulations 2010 (No. 1) (the Regulations).

 

Regulation 2 - Commencement

 

This regulation provides for the Regulations to commence on 27 March 2010.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

 

Subregulation 3(1) provides that Schedule 1 to the Regulations amend the Migration Regulations 1994 (the Principal Regulations).

 

Subregulation 3(2) provides that the amendments made by item [2] of Schedule 1 apply in relation to an application for a visa that is made on or after 27 March 2010.

 

Subregulation 3(3) provides that the amendments made by items [3] and [4] 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 27 March 2010, or an application that is made on or after 27 March 2010.

 

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

 

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

 

Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa that is made on or after 27 March 2010.

 

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

 

Subregulation 5(1) provides that Schedule 3 to the Regulations amend the Principal Regulations.

 

Subregulation 5(2) provides that the amendment made by item [1] of Schedule 3 apply to a decision in respect of which a notice to cancel under section 119 of the Act was issued on or after 27 March 2010.

 

Subregulation 5(3) provides that the amendment made by item [19] of Schedule 3 applies to a person who, on or after 27 March 2010, is a person of a kind mentioned in subregulation 2.86(1) of the Principal Regulations.

 

Subregulation 5(4) provides that the amendment made by item [20] of Schedule 3 applies to a person who, on or after 14 September 2009 is approved as a sponsor of a kind mentioned in subregulation 2.86(1) of the Principal Regulations.

 

Subregulation 5(5) provides that the amendment made by item [21] of Schedule 3 applies to an application for approval of a nominated position that is made, but not finally determined (within the meaning of subsection 5(9) of the Act) before 27 March 2010, or that is made on or after 27 March 2010.

 

Subregulation 5(6) provides that the amendment made item [27] of Schedule 3 applies to an application for a visa that is made on or after 27 March 2010.

 

Subregulation 5(7) provides that the amendments made by Part 3 of Schedule 3 apply to an application for a visa that is made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 27 March 2010, or that is made on or after 27 March 2010.

 

Subregulation 5(8) provides that the amendment made by Part 4 of Schedule 3 applies to an application for a visa that is made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 27 March 2010, or that is made on or after 27 March 2010.

 

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

 

Subregulation 6(1) provides that Schedule 4 to the Regulations amend the Principal Regulations.

 

Subregulation 6(2) provides that the amendments made by Part 1 of Schedule 4 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 27 March 2010, or that is made on or after 27 March 2010.

 

Subregulation 6(3) provides that the amendments made by Part 2 of Schedule 4 apply in relation to an application for a visa that is made on or after 27 March 2010.

 

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

 

Subregulation 7(1) provides that Schedule 5 to the Regulations amend the Principal Regulations.

 

Subregulation 7(2) provides that the amendments made by Schedule 5 apply in relation to an application for a Subclass 442 (Occupational Trainee) visa and a nomination for a Subclass 442 (Occupational Trainee) visa that is made on or after 27 March 2010.

 

Regulation 8 – Amendment of Migration Regulations 1994 – Schedule 6

 

Subregulation 8(1) provides that Schedule 6 to the Regulations amend the Principal Regulations.

 

 

Subregulation 8(2) provides that the amendment made by Schedule 6 does not apply in relation to an application for a Cultural/Social (Temporary) (Class TE) visa that is made before 27 March 2010.

 

Regulation 9 – Amendment of Migration Regulations 1994 – Schedule 7

 

Subregulation 9(1) provides that Schedule 7 to the Regulations amend the Principal Regulations.

 

Subregulation 9(2) provides that the amendment made by Part 1 of Schedule 7 applies to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 27 March 2010, or that is made on or after 27 March 2010.

 

Subregulation 9(3) provides that the amendments made by Part 2 of Schedule 7 apply in relation to an application for a visa that is made on or after 27 March 2010.

 

Schedule 1 – Amendments relating to definitions of Australian child order and step child

 

Item [1] – Regulation 1.03, definition of Australian child order, note

This item substitutes the note at the end of the definition of “Australian child order” in regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations with a new note that states that subsection 70L(1) of the Family Law Act 1975 provides that an Australian child order means: (a) a Subdivision C parenting order; or (b) a state child order.

The note to this definition in regulation 1.03 of the Principal Regulations stated that subsection 70L(1) of the Family Law Act 1975 provides that an Australian child order means: a residence order, a contact order or a care order; or a state child order within the meaning of section 70B of that Act.

The note is no longer accurate as a result of amendments to subsection 70L(1) of the Family Law Act 1975 made by the Family Law Amendment (Shared Parenting Responsibility) Act 2006 and the purpose of this amendment is to align the definition of “Australian child order” with the relevant new orders provided under the Family Law Act 1975.

The definition of a “Subdivision C parenting order” under section 4 of the Family Law Act 1975 is a parenting order to the extent to which it deals with: (a) whom a child is to live with; or (b) whom a child is to spend time with; or (c) who is to be responsible for a child’s day-to-day care, welfare and development.

Item [2] – Regulation 1.03, definition of long-term partner relationship, paragraph (b)

This item omits “5” and inserts “3” in paragraph (b) of the definition of “long‑term partner relationship” in regulation 1.03 of Division 1.2 of Part 1 to the Principal Regulations.

The definition of “long-term partner relationship” stated that in relation to an applicant for a visa, it means a relationship between the applicant and another person, each as the spouse or de facto partner of the other, that has continued: (a) if there is a dependent child (other than a step-child) of both the applicant and the other person – for not less than two years; or (b) in any other case – for not less than five years. This provides a definition for this term in the criteria for a Partner (Migrant) (Class BC) visa and a Partner (Residence) (Class BS) visa.

The purpose of this amendment is to reduce the period of time a long-term partner relationship between an applicant for a visa and the spouse or de facto partner has continued where there is not a dependent child (other than a step‑child) of the applicant and their spouse or de facto partner from not less than five years to not less than three years. This will improve processing efficiencies by enabling a greater number of applicants who are in well established relationships to have earlier access to a permanent visa.

Item [3] – Regulation 1.03, before definition of parent visa

This item inserts a new definition of “parenting order”, before the definition of “parent visa” in regulation 1.03 of Division 1.2 of Part 1 to the Principal Regulations.

“Parenting order” is defined as having the meaning given by subsection 64B(1) of the Family Law Act 1975.

Subsection 64B(1) of the Family Law Act 1975 provides that a parenting order is an order dealing with a matter mentioned in subsection 64B(2), or an order discharging, varying, suspending or reviving an order, or part of an order provided above.

Subsection 64B(2) of the Family Law Act 1975 relevantly provides that a parenting order may deal with one or more of the following: the person or persons with whom a child is to live; the time a child is to spend with another person or other persons; the allocation of parental responsibility for a child; if two or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; the communication a child is to have with another person or other persons; maintenance of a child; the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: a child to whom the order relates; or the parties to the proceedings in which the order is made; the process to be used for resolving disputes about the terms or operation of the order; or any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The purpose of this amendment is to define “parenting order” consistently with the Family Law Act 1975 for the use of the term in the Principal Regulations and specifically in the amendment to the definition of “step‑child” provided in item 4 below.

Item [4] – Regulation 1.03, definition of step-child, subparagraph (b)(iii)

This item substitutes subparagraph (b)(iii) in the definition of “step-child” in regulation 1.03 in Division 1.2 of Part 1 to the Principal Regulations with a new subparagraph that provides that in relation to whom the parent has a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live with, or who is to be responsible for the child’s long-term or day-to-day care, welfare and development; or guardianship or custody, whether jointly or otherwise, under a Commonwealth, state or territory law or a law in force in a foreign country.

The definition of “step-child” in regulation 1.03 provided that step-child in relation to a parent, means a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or a person who is not the child of the parent but who is the child of the parent’s former spouse or former de facto partner; and who has not turned 18; and in relation to whom the parent has a residence order in force under the Family Law Act 1975; or a specific issues order in force under the Family Law Act 1975 under which the parent is responsible for the child’s long-term or day-to-day care, welfare and development; or guardianship or custody, whether jointly or otherwise, under a Commonwealth, state or territory law or a law in force in a foreign country.

The effect of this amendment is to replace references to “residence order” and “specific issues order” with the term “parenting order”. This amendment will ensure the references to orders in the definition of “step-child” are consistent with the relevant terms in the Family Law Act 1975.

Schedule 2 – Amendments relating to applications for Child (Residence) (Class BT) visa applications

 

Item [1] – Schedule 1, subparagraph 1108A(3)(c)(ii)

This item omits “applicant; and” and inserts “applicant.” in subparagraph 1108A(3)(c)(ii) of Schedule 1 to the Principal Regulations.

This amendment is consequential to the amendment in item [3], which inserts a new paragraph 1108A(3)(e) in subitem 1108A of Schedule 1 to the Principal Regulations.

Item [2] – Schedule 1, paragraph 1108A(3)(d)

This item omits “is under 18 years of age” and inserts “has not turned 18” in paragraph 1108A(3)(d) in item 1108A of Schedule 1 to the Principal Regulations.

This amendment is consequential to the amendment in item [3], which inserts a new paragraph 1108A(3)(e) in item 1108A to the Principal Regulations.

Item [3] – Schedule 1, after paragraph 1108A(3)(d)

This item inserts a new paragraph 1108A(3)(e) after paragraph 1108A(3)(d) in item 1108A of Schedule 1 to the Principal Regulations.

New paragraph 1108A(3)(e) provides for an application made by a person to whom section 48 of the Act applies, the applicant has not turned 25; or claims to be incapacitated for work due to total or partial loss of bodily or mental functions; and if the applicant is not claiming to be an orphan relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, the applicant must provide, at the same time and place as making the application, an approved form 40CH that has been completed and signed by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the parent of the applicant; and if the applicant claims to be incapacitated for work due to total or partial loss of bodily or mental functions, the applicant must provide, at the same time and place as making the application, evidence from a medical practitioner that supports the applicant’s claim.

Section 48 of the Act provides that a non-citizen in the migration zone who does not hold a substantive visa; and either after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48, but not for a visa of any other class. Paragraph 2.12(1)(p) of the Principal Regulations provides that the Child (Residence) (Class BT) visa is prescribed under section 48, therefore is a visa class for which persons subject to section 48 of the Act may apply.

Subitem 1108A(3) provides the other matters in relation to an application for a Child (Residence) (Class BT) visa that are required by sections 45 and 46 of the Act and regulation 2.07 of the Principal Regulations to make a valid application. The purpose of new paragraph 1108A(3)(e) is to limit certain applicants to whom section 48 of the Act applies from being able to make a valid application for a Child (Residence) (Class BT) visa.

The decision to refuse to grant these applicants a Subclass 802 (Child) visa or Subclass 837 (Orphan Relative) visa and the review of the decision by the Migration Review Tribunal is being used as a basis for applicants to seek the Minister for Immigration and Citizenship (the Minister) to exercise his discretionary power to substitute a more favourable decision for the applicant under section 351 of the Act. New paragraph 1108A(3)(e) will prevent persons to whom section 48 of the Act applies from making a valid application for a Child (Residence) (Class BT) visa unless the applicant can satisfy the requirement in new paragraph 1108A(3)(e).

Item [4] Schedule 1, subitem 1108A(5), after definition of letter of support

 

This item inserts a new definition of “medical practitioner” in subitem 1108A(5) of item 1108A of Schedule 1 to the Principal Regulations, after the definition of “letter of support” to provide that “medical practitioner” means a person registered as a medical practitioner under a law of a state or territory providing for the registration of medical practitioners.

 

The purpose of this amendment is to provide a definition for the new term “medical practitioner” for item 1108A to the Principal Regulations. The new term “medical practitioner” is provided for in the amendment in item [3] above.

 

 

 

 

Schedule 3 – Amendments relating to worker protection

 

Part 1 – General amendments of Migration Regulations 1994

 

Item [1] – Subparagraph 2.43(1)(l)(ii)

 

This item substitutes new subparagraph 2.43(1)(l)(ii) in Division 2.9 of Part 2 to the Principal Regulations.

 

Regulation 2.43 of the Principal Regulations prescribes the grounds on which the Minister may cancel a visa under paragraph 116(1)(g) of the Act. Current subparagraph 2.43(1)(l)(ii) provides a ground for cancelling Subclass 457 (Business (Long Stay)) visas where the sponsor has given false or misleading information to the Department or the Migration Review Tribunal in relation to either an application under regulation 1.20C for approval as a standard business sponsor or any other matter relating to the business sponsor.

 

Regulation 1.20C was repealed by the Migration Amendment Regulations 2009 (No. 5), which commenced on 14 September 2009. Regulation 2.61 of Part 2A of the Principal Regulations now provides for applications for approval as a sponsor.

 

The effect of this amendment is to allow the Minister to decide to cancel a Subclass 457 visa if the sponsor gives false or misleading information to the Department or the Migration Review Tribunal in any circumstance. This is to capture the wide variety of situations in which false or misleading information may be given by the sponsor. This includes not only information given in relation to matters directly related to the sponsor (such as sponsorship applications, nomination applications, or the sponsor’s compliance with sponsorship obligations) but also information `which is not given in relation to matters directly related to the sponsor (for example information given by the sponsor in support of the visa application made by the Subclass 457 visa holder).

 

The amendment also provides the simplicity of removing the need to exhaustively list and distinguish between false or misleading information given by the sponsor in relation to applications (or other interactions with the Department) made under the Principal Regulations as in force immediately before 14 September 2009, and applications (or other interactions with the Department) made under the Principal Regulations as amended by the Migration Amendment Regulations 2009 (No.5) on or after 14 September 2009.

 

To ensure the broad nature of the amendment to subparagraph 2.43(1)(l)(ii) does not unduly and adversely affect the rights of Subclass 457 visa holders and that the visa cancellation ground is exercised only in appropriate circumstances, the amendment is accompanied by comprehensive policy guidelines. In particular, the policy guidelines emphasise the discretionary nature of the visa cancellation power and that visa cancellation under the amended subparagraph 2.43(1)(l)(ii) should not be made as a matter of course merely because the sponsor has given false or misleading information to the Department or the Migration Review Tribunal. The policy guidelines also emphasise that decision-makers must have regard to key factors such as the nature of the false or misleading information given and whether it was material in the decision to grant the Subclass 457 (Business (Long Stay)) visa, and whether the visa holder was complicit in the giving of the false or misleading information.

 

Item [2] – Subregulation 2.57(1), definition of secondary sponsored person, sub‑subparagraph (a)(ii)(B)

 

This item substitutes new sub-subparagraph 2.57(1)(a)(ii)(B) in the definition of “secondary sponsored person” in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.

 

This is a technical amendment to the wording of the definition and makes it clear that it applies to a person who is taken, under section 78 of the Act, to have been granted the visa at the time of the person’s birth.

 

Item [3] – Subregulation 2.57(1), definition of secondary sponsored person, sub‑subparagraph (a)(iii)(D)

 

This item substitutes new sub-subparagraph 2.57(1)(a)(iii)(D) in the definition of “secondary sponsored person” in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.

 

This is a technical amendment to the wording of the definition and makes it clear that it applies to a person who is taken, under section 78 of the Act, to have been granted the visa at the time of the person’s birth.

 

Item [4] - Subregulation 2.57(1), definition of secondary sponsored person, sub‑subparagraph (b)(ii)(B)

 

This item substitutes new sub-subparagraph 2.57(1)(b)(ii)(B) in the definition of “secondary sponsored person” in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.

 

This is a technical amendment to the wording of the definition and makes it clear that it applies to a person who is taken, under section 78 of the Act, to have been granted the visa at the time of the person’s birth.

 

Item [5] – Subregulation 2.57(1), definition of secondary sponsored person, sub‑subparagraph (b)(iii)(D)

 

This item substitutes new sub-subparagraph 2.57(1)(b)(iii)(D) in the definition of “secondary sponsored person” in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.

 

This is a technical amendment to ensure the provision is grammatically correct.

Item [6] – Subregulation 2.57(1), definition of secondary sponsored person, sub‑subparagraph (b)(iv)(D)

 

This item substitutes new sub-subparagraph 2.57(1)(b)(iv)(D) in the definition of “secondary sponsored person” in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.

 

This is a technical amendment to the wording of the definition and makes it clear that it applies to a person who is taken, under section 78 of the Act, to have been granted the visa at the time of the person’s birth.

 

Item [7] – Subparagraph 2.59(b)(ii)

 

This item omits the word “subclause” in paragraph 2.59(b)(ii) in Division 2.13 of Part 2A of the Principal Regulations and inserts the word “subitem” in its place.

 

This is a technical amendment which ensures the correct terminology is used.

 

Item [8] – Paragraph 2.59(e)

 

This item omits the words “instrument, in writing” in paragraph 2.59(e) in Division 2.13 of Part 2A of the Principal Regulations and inserts the word “instrument”.

 

The purpose of this amendment is to correct the grammatical structure of this paragraph.

 

Item [9] – Paragraph 2.68(h)

 

This item omits each mention of “the Minister” and inserts the term “Immigration” in paragraph 2.68(h) of the Principal Regulations.

 

The purpose of this amendment is to provide consistency with similar provisions throughout Part 2A of the Regulations, which refer to “Immigration” rather than “the Minister”.

 

Item [10] – Paragraph 2.69(1)(c)

 

This item substitutes the word “by” at the beginning of paragraph 2.69(1)(c) in Division 2.16 in Part 2A and replaces this word after the hyphen in the same provision.

 

This is a technical amendment to correct an error in the sentence structure.

Item [11] – Sub-subparagraph 2.72(10)(d)(ii)(B)

 

This item omits the word “paragraph” and inserts the word “sub-subparagraph” in sub-subparagraph 2.72(10)(d)(ii)(B) in Division 2.17 of Part 2A of the Principal Regulations.

 

This is a technical amendment which ensures the correct terminology is used.

 

Item [12] – Sub-subparagraph 2.72(10)(d)(iii)(B)

 

This item omits the word “paragraph” and inserts the word “sub-subparagraph” in sub-subparagraph 2.72(10)(d)(iii)(B) in Division 2.17 of Part 2A of the Principal Regulations.

 

This is a technical amendment which ensures the correct terminology is used.

 

Item [13] – Subregulation 2.72A(3)

 

This item omits the words “is be satisfied” and insert the words “is satisfied” in subregulation 2.72A(3) in Division 2.17 of Part 2A of the Principal Regulations.

 

This is a technical amendment which corrects an error in the sentence structure.

 

Item [14] – Paragraph 2.72G(7)(a)

 

This item omits the word “and” and insert the word “or” at the end of paragraph 2.72G(7)(a) of Division 2.17 of Part 2A of the Principal Regulations.

 

Regulation 2.72G sets out the criteria for approval of a nomination for a Subclass 427 (Domestic Worker (Temporary) – Executive) visa applicant or holder.

 

New subregulation 2.72G(7) ensures that the domestic worker sponsor only has to provide evidence either that they have been unable to find a suitable person in Australia for the nominated occupation or that there are compelling reasons for employing the Subclass 427 visa holder or applicant.

 

Item [15] – Subparagraph 2.73(6)(c)(ii)

 

This item omits the reference to sub-subparagraph 2.73(6)(c)(ii)(b) and inserts the same sub-subparagraph but with reference to sub-subparagraph 2.73(6)(c)(ii)(B) of Division 2.17 of Part 2A of the Principal Regulations.

 

This is a technical amendment which ensures the correct reference is used to refer to the sub-subparagraph.

Item [16] – Subregulation 2.80(1)

 

This item omits the second paragraph 2.80(1)(c) in subregulation 2.80(1) of Division 2.19 of Part 2A of the Principal Regulations with inserts paragraph 2.80(1)(d).

 

The current subregulation 2.80(1) contains two paragraphs numbered “(c)”. This is a technical amendment to rectify this error.

 

Item [17] – Paragraph 2.80(3)(b)

 

This item inserts the word “for” after the word “passport” in paragraph 2.80(3)(b) of Division 2.19 of Part 2A of the Principal Regulations. This is a technical amendment to ensure the sentence structure is correct.

 

Item [18] – Paragraph 2.84(8)(a)

 

This item omits the words “on which the work” and inserts “the work” in paragraph 2.84(8)(a) of Division 2.19 of Part 2A of the Principal Regulations.

 

The effect of this amendment is to correct the words ‘on which’ that appear twice in this paragraph. This is a technical amendment which ensures the sentence structure is correct.

 

Item [19] – Subregulation 2.86(2)

 

This item substitutes new subregulation 2.86(2) in Division 2.19 of Part 2A of the Principal Regulations.

 

This item clarifies the obligation imposed on a person who is or was an approved sponsor to ensure that the primary sponsored person does not work in an occupation or activity other than the nominated occupation or activity. A “primary sponsored person” is defined in subregulation 2.57(1) as, broadly, a sponsored person who satisfies the primary criteria for a visa.

 

The item provides for three different scenarios to cater for nominations of a Subclass 457 (Business (Long Stay)) visa applicant or holder that were lodged or approved both before and after the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act) commenced on 14 September 2009.

 

This item requires the person who is or was an approved sponsor to ensure that the sponsored Subclass 457 visa holder (or former Subclass 457 visa holder) does not work in an occupation or activity other than the occupation or activity in relation to which:

-         the primary sponsored person was nominated under subsection 140GB(1) and approved by the Minister under subsection 140GB(2); or

-         the primary sponsored person was nominated under regulations 1.20G or 1.20GA (as in force immediately before 14 September 2009) and approved under section 1.20H (as in force immediately before 14 September 2009); or

-         the primary sponsored person was nominated under regulations 1.20G or 1.20GA (as in force immediately before 14 September 2009) but approved by the Minister under subsection 140GB(2).

 

The purpose of this item is to ensure that the obligation applies to a person who is or was an approved sponsor regardless of whether the person made a nomination before, on or after the Worker Protection Act commenced.

 

Item [20] – Subregulation 2.86(2A)

 

This item omits everything after the words “the person must” and inserts new paragraphs 2.86(2A)(c) and (d) in Division 2.19 of Part 2A of the Principal Regulations.

 

Subregulation 2.86(2A) sets out the obligation of a person who is the sponsor of a Subclass 457 (Business (Long Stay)) visa holder (or former Subclass 457 visa holder) to ensure that the Subclass 457 visa holder (or former Subclass 457 visa holder) is only engaged as an employee of the sponsor or as an employee of an associated entity of the sponsor.

 

This item distinguishes between sponsors who are standard business sponsors and sponsors who are parties to a work agreement, with a further distinction being made between standard business sponsors who operate a business in Australia and standard business sponsors who operate a business outside Australia.

 

The effect of this amendment is to provide that:

-         if the person is or was a standard business sponsor who lawfully operates a business in Australia, then the primary sponsored person must only be engaged as an employee of the person or as an employee of an associated entity of the person; or

-         if the person is or was a standard business sponsor who does not lawfully operate a business in Australia, then the primary sponsored person must only be engaged as an employee of the person; or

-         if the person is or was a party to a work agreement, then the primary sponsored person must only be engaged as an employee of the person.

 

This amendment reflects the nomination criteria in subparagraphs 2.72(10)(d)(ii) and (iii), which allows a standard business sponsor operating a business inside Australia to nominate a position for a Subclass 457 visa applicant or holder that is in an associated entity of the standard business sponsor, but require a standard business sponsor operating a business outside Australia to nominate a position for a Subclass 457 visa applicant or holder that is in the standard business sponsor’s business (that is, they cannot be employed in an associated entity of the standard business sponsor).

 

In addition, this item includes parties to a work agreement to ensure that a primary sponsored person is only engaged as an employee of the person who is a party to a work agreement (and not as an employee of an associated entity of the party to a work agreement).

 

Item [21] – Subparagraph 5.19(1C)(a)(iii)

 

This item omits the words “Act; and” and inserts the words “Act (as in force immediately before 14 September 2009) or section 140M of the Act; and” in subparagraph 5.19(1C)(a)(iii) of Division 5.3 of Part 5 of the Principal Regulations.

 

Regulation 5.19 sets out the requirements for approval of nominated positions in relation to the employer nomination scheme. Subparagraph 5.19(1C)(a)(iii) provided that a nomination will not be approved if the employer is the subject of an action described in section 140L of the Act. Prior to 14 September 2009, section 140L of the Act described the actions that may be taken in relation to a sponsor, such as cancelling approval of the sponsor or barring the sponsor. Section 140L was repealed by the Migration Legislation Amendment (Worker Protection) Act 2008, which commenced on 14 September 2009, and the actions that may be taken in relation to a sponsor are now described in section 140M of the Act.

 

This amendment ensures that a nomination under regulation 5.19 is not approved if the employer is the subject of an action described in section 140L of the Act (as in force immediately prior 14 September 2009) or in section 140M of the Act.

 

Part 2 – Amendments of Schedule 1 to the Migration Regulations 1994

 

Item [22] – Sub-sub-subparagraph 1205(3)(cb)(ii)(D)(I)

 

This item omits the reference to “2.76(4);” and insert “2.76(4); or” at the end of sub-sub-subparagraph 1205(cb)(ii)(D)(I) of item 1205 of Schedule 1 to the Principal Regulations.

 

This is a technical amendment to correct the sentence structure in this provision.

 

Item [23] – Sub-sub-subparagraph 1205(3)(cb)(ii)(D)(II)

 

This item omits the word “or” at the beginning of the sub-sub-subparagraph 1205(3)(cb)(ii)(D)(II) of item 1207 of Schedule 1 to the Principal Regulations.

 

This is a technical amendment to correct the sentence structure in this provision.

 

Item [24] – Subparagraph 1207(3)(ba)(i)

 

This item omits the word “applicant” and insert the words “applicant has been identified, or proposes to be identified” in subparagraph 1207(3)(ba)(i) of Schedule 1 to the Principal Regulations.

 

Item 1207 sets out the requirements for making a valid application for a Domestic Worker (Temporary) (Class TG) visa. Current subparagraph 1207(3)(ba)(i) requires the visa applicant seeking to satisfy the primary criteria for the grant of a Subclass 427 (Domestic Worker (Temporary) – Executive) visa to specify, in the application, the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act (which provides for the Minister to approve nominations). In many circumstances however, the visa applicant will have already been identified in a nomination at the time of applying for the visa.

 

The effect of this amendment is that, at the time of applying for a Class TG visa, an applicant may specify either the person by whom the applicant proposes to be identified in a nomination or the person by whom the applicant has already been identified in a nomination.

 

Item [25] – Subparagraph 1208(3)(bb)(i)

 

This item omits the words “applicant proposes to be identified” and inserts the words “applicant has been identified, or proposes to be identified” in subparagraph 1208(3)(bb)(i) of item 1208 of Schedule 1 to the Principal Regulations.

 

Item 1208 sets out the requirements for making a valid application for an Education (Temporary) (Class TH) visa. Current subparagraph 1208(3)(bb)(i) requires the visa applicant seeking to satisfy the primary criteria for the grant of a Subclass 419 (Visiting Academic) visa to specify, in the application, the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act (which provides for the Minister to approve nominations). In many circumstances however, the visa applicant has already been identified in a nomination at the time of applying for the visa.

 

The effect of this amendment is that, at the time of applying for a Class TH visa, an applicant may specify either the person by whom the applicant proposes to be identified in a nomination or the person by whom the applicant has already been identified in a nomination.

 

Item [26] – Subparagraph 1208(3)(bc)(i)

 

This item omits the word “applicant proposes to be identified” and inserts the words “applicant has been identified, or proposes to be identified” in subparagraph 1208(3)(bc)(i) of item 1208 of Schedule 1 to the Principal Regulations.

 

Item 1208 sets out the requirements for making a valid application for an Education (Temporary) (Class TH) visa. Current subparagraph 1208(3)(bc)(i) requires the visa applicant seeking to satisfy the primary criteria for the grant of a Subclass 442 (Occupational Trainee) visa to specify, in the application, the person by whom the applicant proposes to be identified in a nomination for the purposes of section 140GB of the Act (which provides for the Minister to approve nominations). In many circumstances however, the visa applicant has already been identified in a nomination at the time of applying for the visa.

 

The effect of this amendment is to clarify that, at the time of applying for a Class TH visa, an applicant may specify either the person by whom the applicant proposes to be identified in a nomination or the person by whom the applicant has already been identified in a nomination.

 

Item [27] – Subparagraph 1223A(1)(bb)(ii)

 

This item substitutes subparagraph 1223A(1)(bb)(ii) with new subparagraph 1223A(1)(bb)(ii) of item 1223A of Schedule 1 to the Principal Regulations.

 

This item clarifies which form is available to visa applicants in order to make a valid application for a Subclass 457 (Business (Long Stay)) visa.

 

Item 1223A of Schedule 1 prescribes a number of requirements which must be met in order to make a valid application for a Temporary Business Entry (Class UC) visa.

Paragraph 1223A(1)(bb) specifies that if the applicant seeks to satisfy the secondary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa and is not making a combined application with the applicant seeking to satisfy the primary criteria for the grant of that visa (the primary applicant), they may use either form 1066 or 1066S (Internet) to make their visa application.

 

The purpose of this amendment is to specify that form 1066S (Internet) is only available as an option for secondary applicants who are in Australia if they hold a substantive visa at the time of application.

 

Part 3 – Amendments of Schedule 2 to the Migration Regulations 1994

 

Item [28] – Clause 411.322A

 

This item omits the word “The” and inserts the words “Subject to clause 411.322AB, the” in clause 411.322A of Schedule 2 to the Principal Regulations.

Clause 411.322A provides that, at the time of decision to grant the applicant a Subclass 411 (Exchange) visa, the Minister must be satisfied that the exchange sponsor who has most recently identified the member of the family unit who satisfies the primary criteria in a nomination has agreed in writing to be the exchange sponsor in relation to the applicant.

 

The effect of this amendment is to make clause 411.322A subject to new clause 411.322AB described in item [29], which ensures that members of the family unit of a primary applicant who made his or her visa application before 14 September 2009 may still be eligible for the Subclass 411 visa.

 

Item [29] – After clause 411.322A

 

This item inserts a new clause 411.322AB after clause 411.322A of Schedule 2 to the Principal Regulations.

 

Clause 411.322AB d provides that clause 411.322A does not apply to an applicant for a Subclass 411 (Exchange) visa who is a member of the family unit of the person who satisfies the primary criteria if that person made their application prior to 14 September 2009.

 

Prior to commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, applicants for a Subclass 411 visa were not required to be sponsored to be eligible for the visa. Clause 411.322A was inserted on 14 September 2009 and requires applicants seeking to meet the secondary criteria for the visa to demonstrate that the sponsor of the member of the family unit who satisfies the primary criteria (the primary applicant) has also agreed to sponsor the secondary applicant. It is impossible for the secondary applicant to satisfy this criterion where the primary applicant made their application prior to 14 September 2009 since at that time the primary applicant was not required to have a sponsor to be eligible for grant of this visa.

 

The purpose of this amendment is to ensure that secondary applicants for a Subclass 411 visa, who make their application after 14 September in relation to a primary application that was made before 14 September 2009, are not prevented from being eligible for the visa only because they cannot satisfy the post-14 September 2009 sponsorship requirement.

 

Item [30] – clause 415.322

 

This item substitutes existing clause 415.322 of Schedule 2 to the Principal Regulations.

 

Clause 415.322 provided that, at the time of decision to grant the applicant a Subclass 415 (Foreign Government Agreement) visa, the Minister must be satisfied that the foreign government agency sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the foreign government agency sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 415 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the foreign government agency sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the foreign government agency sponsor in relation to the member of the family unit.

 

Item [31] – Clause 416.311A

 

This item omits the word “If” and substitute the words “Subject to clause 416.311B, if” in clause 416.311A to the Principal Regulations.

 

Clause 416.311A provides that, at the time of decision to grant the applicant a Subclass 416 (Special Program) visa, if the member of the family unit who satisfies the primary criteria (the primary applicant) seeks to enter or remain in Australia to participate in an approved special program conducted by the special program sponsor in relation to the primary applicant, the Minister must be satisfied that the special program sponsor has agreed in writing to be the special program sponsor in relation to the secondary applicant (the member of the family unit of the primary applicant).

 

The effect of this amendment is to make clause 416.311A subject to new clause 416.311B described in item [32] , which ensures that members of the family unit of a primary applicant who made his or her visa application before 14 September 2009 may still be eligible for the Subclass 416 visa.

 

Item [32] – After clause 416.311A

 

This item inserts a new clause 416.311B after clause 416.311A of Schedule 2 to the Principal Regulations.

 

Clause 416.311B provides that clause 416.311A does not apply to an applicant for a Subclass 416 (Special Program) visa who is a member of the family unit of the person who satisfies the primary criteria if that person made their application prior to 14 September 2009.

 

Prior to commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, applicants for a Subclass 416 visa were not required to be sponsored to be eligible for the visa. Clause 416.311A was inserted on 14 September 2009 and requires applicants seeking to meet the secondary criteria for the visa to demonstrate that the sponsor of the member of the family unit who satisfies the primary criteria (the primary applicant) has also agreed to sponsor the secondary applicant. It is impossible for the secondary applicant to satisfy this criterion where the primary applicant made their application prior to 14 September 2009 since at that time the primary applicant was not required to have a sponsor to be eligible for grant of this visa.

 

The purpose of this amendment is to ensure that secondary applicants for a Subclass 416 visa, who make their application after 14 September in relation to a primary application that was made before 14 September 2009, are not prevented from being eligible for the visa only because they cannot satisfy the post-14 September 2009 sponsorship requirement.

 

Item [33] – Clause 419.321A

 

This item omits the word “The” and inserts the words “Subject to clause 419.321B, the” in clause 419.321A of Schedule 2 to the Principal Regulations.

Clause 419.321A provides that, at the time of decision to grant the applicant a Subclass 419 (Visiting Academic) visa, the Minister must be satisfied that the visiting academic sponsor who has most recently identified the member of the family unit who satisfies the primary criteria in a nomination has agreed in writing to be the visiting academic sponsor in relation to the applicant.

 

The effect of this amendment is to make clause 419.321A subject to new clause 419.321B described in item [34], to ensure that members of the family unit of a primary applicant who made his or her visa application before 14 September 2009 may still be eligible for a Subclass 419 visa.

 

Item [34] – After clause 419.321A

 

This item inserts a new clause 419.321B after clause 419.321A of Schedule 2 to the Principal Regulations.

 

Clause 419.321B provides that clause 419.321A does not apply to an applicant for a Subclass 419 (Visiting Academic) visa who is a member of the family unit of the person who satisfies the primary criteria if that person made their application prior to 14 September 2009.

 

Prior to commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, applicants for a Subclass 419 visa were not required to be sponsored to be eligible for the visa. Clause 419.321A was inserted on 14 September 2009 and requires applicants seeking to meet the secondary criteria for the visa to demonstrate that the sponsor of the member of the family unit who satisfies the primary criteria (the primary applicant) has also agreed to sponsor the secondary applicant. It is impossible for the secondary applicant to satisfy this criterion where the primary applicant made their application prior to 14 September 2009 since at that time the primary applicant was not required to have a sponsor to be eligible for grant of this visa.

 

The purpose of this amendment is to ensure that secondary applicants for a Subclass 419 visa, who make their application after 14 September in relation to a primary application that was made before 14 September 2009, are not prevented from being eligible for the visa only because they cannot satisfy the post-14 September 2009 sponsorship requirement.

 

Item [35] – Clause 420.322

 

This item substitutes existing clause 420.322 of Schedule 2 to the Principal Regulations.

 

Clause 420.322 provided that, at the time of decision to grant the applicant a Subclass 420 (Entertainment) visa, the Minister must be satisfied that the entertainment sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the entertainment sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 420 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the entertainment sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the entertainment sponsor in relation to the member of the family unit.

 

Item [36] – Clause 421.322

 

This item substitutes existing clause 421.322 of Schedule 2 to the Principal Regulations.

 

Clause 421.322 provided that, at the time of decision to grant the applicant a Subclass 421 (Sport) visa, the Minister must be satisfied that the sport sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the sport sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 421 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the sport sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the sport sponsor in relation to the member of the family unit.

 

Item [37] – Clause 423.322

 

This item substitutes existing clause 423.322 of Schedule 2 to the Principal Regulations.

 

Clause 423.322 provides that, at the time of decision to grant the applicant a Subclass 423 (Media and Film Staff) visa, the Minister must be satisfied that the entertainment sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the entertainment sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 423 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the entertainment sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the entertainment sponsor in relation to the member of the family unit.

 

 

 

 

Item [38] – Clause 427.322

 

This item substitutes existing clause 427.322 of Schedule 2 to the Principal Regulations.

 

Clause 427.322 provides that, at the time of decision to grant the applicant a Subclass 427 (Domestic Worker) visa, the Minister must be satisfied that the domestic worker sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the domestic worker sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 427 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the domestic worker sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the domestic worker sponsor in relation to the member of the family unit.

 

Item [39] – Clause 428.229

 

This item omits clause 428.229 from Schedule 2 to the Principal Regulations.

 

This clause should have been omitted in the Migration Amendment Regulations 2009 (No. 5) which commenced on 14 September 2009 but was unintentionally left in. Prior to 14 September 2009, applicants for a Subclass 428 (Religious Worker) visa who held a Subclass 428 visa in the migration zone were not required to satisfy all the criteria in Division 428.22 if they met clause 428.229, which provided that the applicant must satisfy the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for grant of a Subclass 428 visa. The provision is now redundant because from 14 September 2009, primary applicants for a Subclass 428 (Religious Worker) visa are required to satisfy all the criteria set out in Division 428.22 of Schedule 2 to the Principal Regulations.

 

Item [40] – Clause 428.322

 

This item substitutes existing clause 428.322 of Schedule 2 to the Principal Regulations.

 

Clause 428.322 provides that, at the time of decision to grant the applicant a Subclass 428 (Religious Worker) visa, the Minister must be satisfied that the religious worker sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the religious worker sponsor in relation to the applicant.

 

Prior to the commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, secondary applicants (that is, members of the family unit of the person who satisfies the primary criteria) for a Subclass 428 visa were required to be included in any sponsorship of the primary applicant to be eligible for the visa.

 

The effect of this amendment is to specify that a member of the family unit applying in relation to a primary applicant who made their application prior to 14 September 2009, must be included in any sponsorship required of that primary applicant. If the primary applicant made their application on or after 14 September 2009, then the member of the family unit must satisfy the Minister that the religious worker sponsor who most recently identified the primary applicant in a nomination, has agreed in writing to be the religious worker sponsor in relation to the member of the family unit.

 

Item [41] – Clause 442.321A

 

This item relocates this clause to after clause 442.321 and omit the word “The” and substitutes the words “Subject to clause 442.321B, the” in clause 442.321A of Schedule 2 to the Principal Regulations.

 

Clause 442.321A provides that the Minister must be satisfied that the occupational trainee sponsor who has most recently identified the member of the family unit who satisfies the primary criteria in a nomination has agreed in writing to be the occupational trainee sponsor in relation to the applicant.

 

The effect of this amendment is to make clause 442.321A subject to new clause 442.321B described in item [42], which ensures that members of the family unit of a primary applicant who made his or her visa application before 14 September 2009 may still be eligible for a Subclass 442 visa.

 

The relocation of this clause is to correct an error of this provision.

 

Item [42] – After clause 442.321A as relocated

 

This item inserts a new clause 442.321B after clause 442.321A of Schedule 2 to the Principal Regulations.

 

Clause 442.321B provides that clause 442.321A does not apply to an applicant for a Subclass 442 (Occupational Trainee) visa who is a member of the family unit of the person who satisfies the primary criteria if that person made their application prior to 14 September 2009.

 

Prior to commencement of the Migration Amendment Regulations 2009 (No. 5) on 14 September 2009, applicants for a Subclass 442 visa were not required to be sponsored to be eligible for the visa. Clause 442.321A was inserted on 14 September 2009 and requires applicants seeking to meet the secondary criteria for the visa to demonstrate that the sponsor of the member of the family unit who satisfies the primary criteria (the primary applicant) has also agreed to sponsor the secondary applicant. It is impossible for the secondary applicant to satisfy this criterion where the primary applicant made their application prior to 14 September 2009 since at that time the primary applicant was not required to have a sponsor to be eligible for grant of this visa.

 

The purpose of this amendment is to ensure that secondary applicants for a Subclass 442 visa, who make their application after 14 September in relation to a primary application that was made before 14 September 2009, are not prevented from being eligible for the visa only because they cannot satisfy the post-14 September 2009 sponsorship requirement.

 

Item [43] – Clause 457.223B

 

This item omits the words “the applicant gives to the Minister evidence of” and insert the words “the Minister is satisfied that the applicant has” in clause 457.223B of Schedule 2 to the Principal Regulations.

 

Clause 457.223B provided that the visa applicant has to give to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia, except for those applicants who have met the requirements of subclauses 457.223(8) (relating to service sellers) or 457.223(9) (relating to persons accorded certain privileges and immunities).

 

The effect of this amendment allows the Minister or his delegate to not require the applicant to always give evidence of adequate arrangements for health insurance. Instead, adequate travel insurance or enrolment in a corporate policy held by the sponsoring employer is considered sufficient to meet this requirement.

 

Item [44] – Clause 457.324D

 

This item omits “the applicant gives to the Minister evidence of” and inserts “the Minister is satisfied that the applicant has” in clause 457.324D of Schedule 2 to the Principal Regulations.

 

This amendment is consequential to the amendment made in item [42] above and applies to members of the family unit of the applicant who have met the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa.

 

Item [45] – Subclause 457.611(3)

 

This item omits “8403,” from subclause 457.611(3) of Schedule 2 to the Principal Regulations.

 

Subclause 457.611(3) allows the Minister to impose a number of visa conditions on a Subclass 457 (Business (Long Stay)) visa. Condition 8403 specifies that the visa holder must visit an office of the Department specified by the Minister for the purpose, within the time specified by the Minister for the purpose, to have evidence of the visa placed in the holder’s passport. This condition however is contradictory to clause 457.711 which specifies that no evidence (of the visa) need be given.

 

The effect of this amendment is to remove existing condition 8403 from clause 457.611(3) since it is redundant and would not be imposed.

 

Part 4 – Amendments of Schedule 8 to the Migration Regulations 1994

 

Item [46] – Subclause 8107(3)

 

This item substitutes subclauses 8107(3), (3A) and (3B) in Schedule 8 of the Principal Regulations.

 

The purpose of this item is to clarify the work limitations that apply to the holder of a Subclass 457 (Business (Long Stay)) visa, depending on the stream under which the holder was granted the Subclass 457 (Business (Long Stay)) visa.

 

New subclause 8107(3) specifies that the visa holder may work for an associated entity of the sponsor only if the sponsor is a standard business sponsor or a former standard business sponsor who lawfully operates a business in Australia. This reflects the criteria for approval of a nomination relating to Subclass 457 visas in sub‑subparagraph 2.72(10)(d)(iii)(A).

 

New subclause 8107(3), in conjunction with new subclause 8107(3A), also clarifies that a visa holder whose occupation is specified in an instrument in writing for sub-paragraph 2.72(10)(d)(ii) or (iii) must work only in the occupation listed in the most recently approved nomination for the visa holder, but need not work only for the sponsor who nominated them in the most recently approved nomination. The purpose of this amendment is to remove a possible ambiguity in current subclause 8107(3), which does not make clear that such a visa holder must work only in the occupation listed in the most recently approved nomination for the visa holder.

 

The amendment inserting a new subclause 8107(3B) specifying that a visa holder who was granted the visa on the basis of meeting subclause 457.223(8) (relating to service sellers), subclause 457.223(9) (relating to persons accorded certain privileges and immunities) or subclause 457.223(10) (relating to Invest Australia Supported Skills (IASS) agreements) must only work in the occupation or position in relation to which the visa was granted. Such visa holders were not required to be nominated to be eligible for grant of the Subclass 457 visa. Therefore, the effect of the amendment is to ensure that such visa holders, in the absence of an approved nomination, work only in the occupation or position in relation to which the Subclass 457 (Business (Long Stay)) visa was granted to them.

 

Schedule 4 - Amendments relating to parent category visas

 

Part 1 – Amendments applicable to all applications for visa

Item [1] – Paragraphs 2.08A(2A)(d) and (e)

This item omits paragraphs 2.08A(2A)(d) and (e) from subregulation 2.08A(2A) in Division 2.2 of Part 1 to the Principal Regulations.

Subregulation 2.08A(1) of the Principal Regulations allows certain applicants to request their spouse, de facto partner or dependent child to be added to a permanent visa application of a class for which Schedule 1 to the Principal Regulations permits combined applications. Subregulation 2.08A(2) further provides that the additional applicant must be a person who satisfies applicable secondary criteria at the time of application and decision. Applicants cannot add a spouse, de facto partner or dependant child after their application has been decided.

Subregulation 2.08A(2A), however, excludes applicants for certain visas from the operation of subregulations 2.08A(1) and (2). Paragraphs 2.08A(2A)(d) and (e) provide that an applicant for a Contributory Parent (Migrant) (Class CA) visa, being an applicant who holds a Subclass 173 - (Contributory Parent) (Temporary)) visa at the time of application; or a Contributory Aged Parent (Residence) (Class DG) visa, being an applicant who holds a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application; is prevented from adding an applicant after they have made a visa application.

The effect of the amendment is to allow an applicant excluded by the operation of paragraphs 2.08A(2A)(d) and (e) to not be excluded from adding their spouse, de facto or dependent child to their visa application after it is made but before it is decided.

Items [2] to [5], [9] to [12], [16], [17], and [22] to [23] – General Notes

These items omits “close relative” and insert “relative” in the following subparagraphs of Part 103, 143, 173, 804, 864, and 884 of Schedule 2 to the Principal Regulations:

Item	Provision
2	Part 103, Schedule 2, subparagraph 103.212(3)(b)(i)
3	Part 103, Schedule 2, subparagraph 103.212(3)(c)(i)
4	Part 143, Schedule 2, subparagraph 143.212(3)(b)(i)
5	Part 143, Schedule 2, subparagraph 143.212(3)(c)(i)
9	Part 173, Schedule 2, subparagraph 173.212(3)(b)(i)
10	Part 173, Schedule 2, subparagraph 173.212(3)(c)(i)
11	Part 804, Schedule 2, subparagraph 804.212(3)(b)(i)
12	Part 804, Schedule 2, subparagraph 804.212(3)(c)(i)
16	Part 864, Schedule 2, subparagraph 864.213(3)(b)(i)
17	Part 864, Schedule 2, subparagraph 864.213(3)(c)(i)
22	Part 884, Schedule 2, subparagraph 884.212(3)(b)(i)
23	Part 884, Schedule 2, subparagraph 884.212(3)(c)(i)

 

Previously in Part 103, 143, 173, 804, 864 and 884 of Schedule 2 to the Principal Regulations, an applicant may meet the time of application criterion in relation to sponsorship if the applicant is sponsored by a settled Australian citizen; settled Australian permanent resident; or settled eligible New Zealand citizen who is a “close relative” or “guardian” of their child who has turned 18; or if their child has a cohabiting spouse that has not turned 18 – a person who is a “close relative” or “guardian” of their child’s spouse.

The term “close relative” is defined under regulation 1.03 in Division 2.01 of Part 1 to the Principal Regulations as the spouse or de facto partner of a person; a child, parent, brother or sister of the person; or a step-child, step-brother or step-sister of the person.

The definition of “relative” under regulation 1.03 in relation to applicants who are not applicants for a Subclass 200 (Refugee) visa or a Protection (Class XA) visa is a close relative; or a grandparent, grandchild, aunt, uncle, niece or nephew and their step-equivalents.

The purpose of the amendments is to enable a parent of a child who has not turned 18, to be sponsored by a “relative” of the child or in certain circumstances a relative of the child’s spouse, rather than a “close relative” of the child, or in certain circumstances a close relative of the child’s spouse. This provides a wider range of potential sponsors for an applicant, who are able to facilitate the successful settlement of the applicant in Australia.

Item [6] – Schedule 2, clause 143.311

This item substitutes clause 143.311 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.311.

Clause 143.311 relates to the time of application criteria for a Subclass 143 (Contributory Parent) visa, and required that the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the time of application criteria for this visa.

New clause 143.311 requires that either:

·              the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primacy criteria in Subdivision 143.21; or

·              the applicant is a member of the family unit of a person (the other applicant) who: (a) has applied for a Contributory Parent (Migrant)(Class CA) visa; and (b) was in Australia at the time of application; and (c) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 143.21; and

·              The other applicant is: (i) the holder of a Subclass 173 (Contributory Parent (Temporary)) visa; or (ii) a substituted Subclass 676 visa; and (iii) not had the Minister decide to grant or refuse to grant the visa to the other applicant; and

·              The applicant is required to be in Australia at the time they applied for the Contributory Parent (Migrant)(Class CA) visa.

The purpose of this amendment is to enable a member of the family unit of an applicant in Australia at the time of application for a Contributory (Migrant) (Class CA) visa, to make an application for that visa after the other applicant has applied and before a decision has been made on their application, if on the basis of the information provided in the application of the applicant, the other applicant appears to satisfy the time of application criteria.

Item [7] – Schedule 2, paragraph 143.411(c)

This item omits “subclass 676 visa” and insert “subclass 676 visa; or” in paragraph 143.411(c) in Part 143 of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment in item [8] that inserts a new paragraph 143.411(d) in clause 143.411 of Part 143 of Schedule 2 to the Principal Regulations.

Item [8] – Schedule 2, after paragraph 143.411(c)

This item inserts a new paragraph 143.411(d) after paragraph 143.411(c) in Part 143 of Schedule 2 to the Principal Regulations

Clause 143.411 provided where an applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted. New paragraph 143.411(d) provides that if the applicant is, at the time of application: an applicant who is a member of the family unit of a person who is the holder of a Contributory Parent (Temporary) (Class UT) visa; and to whom paragraph 143.311(b) applies, the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.

The purpose of the amendment is to specify the circumstances applicable to the grant of a visa to an applicant who is the member of the family unit of the holder of a Contributory Parent (Temporary) (Class UT) visa who did not make a combined application with a person who satisfies the primary criteria in Subdivision 143.21.

Item [13] – Schedule 2, subclause 864.211(1)

This item substitutes subclause 864.211(1) in Part 864 of Schedule 2 to the Principal Regulations with new subclause 864.211(1).

New subclause 864.211(1) requires that the applicant for a Subclass 864 (Contributory Aged Parent) visa is, at the time of application: (a) the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or (b) a person who: (i) is not the holder of a substantive visa; and (ii) immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 - (Transit) visa; and (iii) satisfies criterion 3002.

Subclause 864.211(1) was worded in a way that is ambiguous.

The purpose of the amendment is to put beyond doubt that only the person described in new paragraph 864.211(1)(b) (that is a person who is not the holder of a substantive visa) is required to satisfy criterion 3002.

Item [14] – Schedule 2, paragraph 864.213(1)(b)

This item omits “this clause.” and insert “this clause; or” in paragraph 864.213(1)(b) in Part 864 of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment in item [15] that inserts a new paragraph 864.213(1)(c) into subclause 864.213(1) of the Principal Regulations.

Item [15] – Schedule 2, after paragraph 864.213(1)(b)

This item inserts new paragraph 864.213(1)(c) after paragraph 864.213(1)(b) in Part 864 of Schedule 2 to the Principal Regulations to provide “(c) satisfies the criterion in paragraph 864.212(c).”

Current subclause 864.213(1) requires that an applicant seeking to satisfy the criteria for a Subclass 864 (Contributory Aged Parent) visa must be: (a) sponsored in accordance with subclause 864.213(2) or (3); or (b) taken to be sponsored in accordance with clause 864.213 to be eligible for the grant of the visa.

Paragraph 864.212(c) in Part 864 of the Principal Regulations provides that the applicant is a person who is the holder of a substituted Subclass 676 visa; and who was, before he or she was granted the substituted Subclass 676 visa, the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa that ceased to be in effect; and who is no longer the parent of the child because the child has died; and (iv) who is not the parent of another child.

The effect of the amendment is that applicants who seek to satisfy the criteria for a Subclass 864 (Contributory Aged Parent) visa who fall within the criteria in paragraph 864.212(c) are not be required to be sponsored in accordance with subclause 864.213(1). The purpose of the amendment is to enable such applicants whose sponsoring child has died, to be eligible for the grant of the visa.

Item [18] – Schedule 2, clause 864.221

This item substitutes clause 864.221 in Part 864 of Schedule 2 to the Principal Regulations with new clause 864.221.

New clause 864.221 provides in relation to an applicant for a Subclass 864 (Contributory Aged Parent) visa that:

• if the applicant met the requirement in paragraph 864.212(ab) at time of application, the applicant continues to be the parent of the child mentioned in that paragraph;
• if the applicant met the requirement in paragraph 864.212(c) at the time of application, the applicant is not the parent of a child other than the child mentioned in subparagraph 864.212(c)(iii);
• if the applicant met any other requirement in clause 864.212 at time of application, the applicant continues to meet the requirement.

Clause 864.221 of Schedule 2 to the Principal Regulations provided that the applicant continues to meet the requirements set out in clause 864.212. The purpose of the amendment is to ensure that applicants can continue to meet the criteria specified even if there is a long wait for decisions on an application for a Subclass 864 (Contributory Aged Parent) visa.

 

The effect of the amendment is firstly, that if an applicant met the requirements at time of application of paragraph 864.212(ab) as the holder of a substituted Subclass 676 visa, and is the parent of a person (the child) who is a settled Australian citizen; a settled Australian permanent resident; or a settled eligible New Zealand citizen, the applicant must continue to be the parent of the child at the time of decision to be eligible for the grant of the visa.

 

Secondly, if an applicant met the requirements at time of application of paragraph 864.212(c) as a person who is the holder of a substituted Subclass 676 visa; and who was, before he or she was granted the visa, the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa that ceased to be in effect; and who is no longer the parent of the child because the child has died; and who is not the parent of another child, the applicant must have not been, and is not the parent of a child other than that child at the time of decision.

 

Thirdly, new subclause 864.221(3) provides for all other applicants who met other requirements in clause 864.212 at the time of application continues to meet the requirements in clause 864.212 at the time of decision.

 

Item [19] – Schedule 2, clause 864.222

This item omits “If a sponsorship” and inserts “For an applicant who satisfies the criterion in paragraphs 864.213(1)(a) or (b), if a sponsorship” in clause 864.222 in Part 864 of Schedule 2 to the Principal Regulations.

This amendment puts beyond doubt that current paragraphs 864.213(1)(a) and (b), which require that an applicant seeking to satisfy the criteria for a Subclass 864 (Contributory Aged Parent) visa must be sponsored; or be taken to be sponsored, do not apply to an applicant whose sponsoring child has died and has met the other requirements in paragraph 864.213(1)(c). For any other applicant, paragraphs 864.213(1)(a) and (b) apply.

Item [20] – Schedule 2, clause 864.311

This item substitutes clause 864.311 in Part 864 of Schedule 2 to the Principal Regulations with new clause 864.311.

New clause 864.311 requires that either:

·              the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 864.21; or

·              the applicant is a member of the family unit of a person (the other applicant) who: (a) has applied for a Contributory Aged Parent (Residence) (Class DG) visa; and (b) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 864.21; and (c) the Minister has not decided to grant or refuse to grant the visa to the other applicant; and

·              the secondary criterion requirement in current clause 864.311 that the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 864.21, must be satisfied at the time of application.

The purpose of the amendment is to enable a member of the family unit of an applicant in Australia at the time of application for a Contributory Aged Parent (Residence) (Class DG) visa to make an application for that visa after the other applicant has applied and before a decision has been made on their application, if on the basis of the information provided in the application of the applicant, the other applicant appears to satisfy the time of application criteria.

Item [21] – Schedule 2, subclause 884.211(1)

This item substitutes subclause 884.211(1) in Part 884 of Schedule 2 to the Principal Regulations with new clause 884.211.

New subclause 884.211(1) requires that the applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa is, at the time of application: (a) the holder of a substantive visa (other than a Subclass 771 (Transit) visa; or (b) a person who: (i) is not the holder of a substantive visa; and (ii) immediately before ceasing to hold a substantive visa, was not the holder of a subclass 771 (Transit) visa; and (iii) satisfies criterion 3002.”

Subclause 884.211(1) required that the applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa must, at the time of application: (a) be the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or (b) a person who: (i) is not the holder of a substantive visa; and (ii) immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and (c) satisfies criterion 3002.

The purpose of the amendment is to put beyond doubt that only the person described in new paragraph 884.211(1)(b) is required to satisfy criterion 3002.

Item [24] – Schedule 2, clause 884.311

This item substitutes clause 884.311 in Part 884 of Schedule 2 to the Principal Regulations with new clause 884.311.

New clause 884.311 requires that either:

• the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 864.21; or
• (i) the applicant is a member of the family unit of a person (the other applicant) who: (a) has applied for a Contributory Aged Parent (Temporary) (Class UU) visa; and (b) on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 884.21; and (ii) the Minister has not decided to grant or refuse to grant the visa to the other applicant.

Clause 884.311 provided that the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 884.21. This secondary criterion must be satisfied at the time of application.

The purpose of the amendment is to enable a member of the family unit of an applicant in Australia at the time of application for a Contributory Aged Parent (Temporary) (Class UU) visa to make an application for that visa after the other applicant has applied and before a decision has been made by the Minister on their application, if on the basis of the information provided in the application of the applicant, the other applicant appears to satisfy the time of application criteria.

Part 2 – Amendments applicable to applications for visa made on or after 27 March 2010

Item [25] – Schedule 1, subitem 1130(3)

This item substitutes subitem 1130(3) in item 1130 of Schedule 1 to the Principal Regulations with new subitem 1130(3).

 

New subitem 1130(3) provides that:

(a) if the applicant is in Australia, and is: (i) the holder of a Subclass 173 (Contributory Parent (Temporary)) visa; or (ii) the holder of a substituted Subclass 676 visa; the application must be made in Australia but not in immigration clearance; or

 

(b) if the applicant is not mentioned in paragraph (a), application must be made by: (i) posting the application ( with the correct pre-paid postage) to the post office box address specified by the Minister in an instrument for this subparagraph; or (ii) having the application delivered by a courier specified by the Minister in an instrument for this subparagraph; and

 

(c) if the applicant (the relevant applicant) makes his or her application on the basis of claiming to be a member of the family unit of a person who is an applicant for a Contributory Parent (Migrant) (Class CA) visa, his or her application (i) must be made in the same way as the application made by the other applicant; and (ii) may be made at the same time and place as, and combined with, the application made by the other applicant; and

 

(d) if the applicant has previously made a valid application for another parent visa: (i) a decision to grant or refuse to grant that visa has been made; or (ii) the application for that visa has been withdrawn.

 

Subitem 1130(3) provided that:

(a) if the applicant is in Australia, and is: (i) the holder of a subclass 173 - (Contributory Parent (Temporary)) visa; or (ii) the holder of a substituted Subclass 676 visa; or (iii) the member of the family unit of an applicant who holds a substituted Subclass 676 visa; the application must be made in Australia but not in immigration clearance; or

 

(b) if the applicant is not mentioned in paragraph (a), application must be made by: (i) posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice for this subparagraph; or (ii) having the application delivered by a courier service to the address specified in a Gazette Notice for this subparagraph; and

 

(c) if the applicant has previously made a valid application for another parent visa: (i) a decision to grant or to refuse to grant that visa has been made; or (ii) the application for that visa has been withdrawn; and

 

(d) application by a person claiming to be a member of the family unit of a person who is an applicant for a Contributory Parent (Migrant) (Class CA) visa may be made at the same time and place as, and combined with, the application by that person; and

 

(e) application by a person: (i) holding a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; and (ii) claiming to be a member of the family unit of a person who is an applicant for a Contributory Parent (Migrant) (Class CA) visa may be made at the same time, and combined with, the application by that person.

 

The purpose of the amendment is to ensure that applicants making an application on the basis of claiming to be a member of the family unit of a person who is the primary applicant for a Contributory Parent (Migrant) (Class CA) visa must be made in the same way as the applicant made by the other applicant; and at the same time and place as, and combined with, the application made by the other applicant. The substituted new subitem 1130(3) also makes minor technical amendments to substitute references to “gazette notice” with “instrument” to update these references consistent with the Legislative Instruments Act 2003.

 

Item [26] – Schedule 2, clause 143.211

 

This item omits “The applicant is” and inserts “(1) The applicant is” in clause 143.211 in Part 143 of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment in item [27] that inserts a new subclause 143.211(2) into clause 143.211 of the Principal Regulations.

Item [27] – Schedule 2, clause 143.211

This item inserts new subclause 143.211(2) in Part 143 of Schedule 2 to the Principal Regulations.

New subclause provides that if the applicant is in Australia at the time of application; and is not the holder of a substantive visa, the applicant satisfies Schedule 3 criterion 3002.

The purpose of the amendment is to align the Subclass 143 (Contributory Parent) visa with all other parent visa categories that require an applicant who is in Australia at the time of application and not the holder of a substantive visa to satisfy criterion 3002 of Schedule 3 to the Principal Regulations. Clause 3002 provides that an application must be validly made within 12 months after the relevant day that is specified in subclause 3001(2).

The purpose of the amendment is to prevent an applicant for a Subclass 143 (Contributory Parent) visa (in particular a Subclass 173 (Contributory Parent (Temporary)) visa holder from remaining in Australia unlawfully for long periods of time before applying for a Subclass 143 (Contributory Parent) visa, through the use of criterion 3002.

Item [28] – Schedule 2, clause 804.211

This item omits “If:” and inserts “(1) If:” in clause 804.211 of Part 804 of Schedule 2 to the Principal Regulations.

The amendment is consequential to the amendment in item [29] and inserts a new subclause 804.211(2) into clause 804.211 in Part 804 of Schedule 2 to the Principal Regulations.

Item [29] – Schedule 2, clause 804.211

This item inserts new subclause 804.211(2) in Part 804 of Schedule 2 to the Principal Regulations.

New subclause 804.211(2) provides that the applicant for a Subclass 804 (Aged Parent) visa must, at the time of application, be: (a) the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or (b) a person who: (i) is not the holder of a substantive visa; and (ii) immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa.

The purpose of the amendment is to ensure this time of application criterion is consistent with other visas that may be applied for in Australia that limit certain former and current Subclass 771 (Transit) visa holders from being eligible for the grant of the visa. This is to reduce any potential abuse of the Subclass 804 (Aged Parent) visa seeking to delay their departure from Australia. Currently, the holder of a Subclass 771 (Transit) visa is allowed to reside in Australia for a period of up to 72 hours before travelling to their intended destination.

Item [30] – Schedule 2, subclause 804.212(1)

This item substitutes subclause 804.212(1) in Part 804 of Schedule 2 to the Principal Regulations with new subclause 804.212(1).

New subclause 804.212(1) provides that the applicant is:

·              in the case of an applicant who is not the holder of a substituted Subclass 676 visa: (i) the aged parent of a person (the child) who is a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen; and (ii) sponsored in accordance with subclause (2) or (3); or

·              in the case of an applicant who is the holder of a substituted Subclass 676 visa: (i) the parent of a person (the child) who is a settled Australia citizen, settled Australian permanent resident or settled eligible New Zealand citizen; and (ii) sponsored in accordance with subclause (2) or (3).”

Subclause 804.212(1) provided that the applicant: (a) is the parent of a person (the child) who is a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen; and (b) is sponsored in accordance with subclause (2) or (3).

The purpose of the amendment is to ensure this time of application criteria is consistent with the time of decision criteria in paragraph 804.221(a) that requires an applicant to be an “aged parent” rather than a “parent” that is currently the term specified in subclause 804.212(1). This prevents certain applicants who are not the holder of a substituted Subclass 676 visa and are a “parent” at the time of application, from satisfying the time of application criteria, and seeking to be an “aged parent” by the time of decision. Such applicants are therefore not be eligible for the grant of a Subclass 804 (Aged Parent) visa.

The time of decision criteria in paragraph 804.221(b) in relation to a substituted Subclass 676 (Tourist) visa holder currently provides that the holder is a “parent”, and new subclause 804.212(1) therefore maintains the term “parent” in the time of application criteria in relation to an applicant who is the holder of a substituted Subclass 676 (Tourist) visa.

Schedule 5 – Amendments relating to occupational trainee nomination criteria

 

Item [1] – Paragraph 2.72I(5)(c)

 

This item omits “nomination.” and inserts “nomination; and” in paragraph 2.72I(5)(c) of Part 2 to the Principal Regulations.

 

This amendment is consequential to the amendment in item [2].

 

Item [2] – After paragraph 2.72I(5)(c)

 

This item inserts a new paragraph 2.72I(5)(d) in regulation 2.72I of Part 2 to the Principal Regulations.

 

Regulation 2.72I sets out the criteria that must be satisfied by an occupational trainee sponsor who has nominated an occupation, program or activity in relation to a Subclass 442 (Occupational Trainee) visa holder or applicant. Subregulation 2.72I(5) provides the criteria that must be satisfied if the occupational training is to enhance the skills of the identified visa holder or applicant.

 

New paragraph 2.72I(5)(d) provides that, for the nomination to be approved, the identified visa holder or applicant must have appropriate English language skills to undertake the nominated occupational training. The purpose of this amendment is to provide that visa holders have sufficient proficiency in English to undertake the nomination occupational training and ensure that occupational health and safety standards are met.

Item [3] – Subparagraph 2.72I(6)(b)(i)

 

This item substitutes subparagraph 2.72I(6)(b)(i) with new subparagraph 2.72I(6)(b)(i) of Part 2 to the Principal Regulations.

 

New subparagraph 2.72I(6)(b)(i) provides that the nominated occupational training must be supported by a government agency or the government of a foreign country that is the home country of the identified visa holder or applicant.

 

This is a technical amendment to clarify the existing policy intention, which is that the nominated occupational training proposed by the identified visa holder must be supported by either an agency of the Commonwealth of Australia or a state or territory in Australia, or by the government of the visa holder or applicant’s home country.

 

Item [4] – Paragraph 2.72I(6)(e)

 

This item omits “training.” and inserts “training; and” in paragraph 2.72I(6)(e) of Part 2 to the Principal Regulations.

 

This amendment is consequential to the amendment in item [5].

 

Item [5] – After paragraph 2.72I(6)(e)

 

This item inserts new paragraph 2.72I(6)(f) in regulation 2.72I of Part 2 to the Principal Regulations.

 

Regulation 2.72I sets out the criteria that must be satisfied by an occupational trainee sponsor who has nominated an occupation, program or activity in relation to a Subclass 442 (Occupational Trainee) visa holder or applicant. Subregulation 2.72I(6) provides the criteria that must be satisfied if the occupational training is for capacity building overseas.

 

New paragraph 2.72I(6)(f) provides that for the nomination to be approved, the identified visa holder or applicant must have appropriate English language skills to undertake the nominated occupational training.

 

The purpose of this amendment is to provide that visa holders have sufficient proficiency in English to undertake the nomination occupational training and ensure that occupational health and safety standards are met.

 

Item [6] – Schedule 2, after subclause 442.224

 

This item inserts a new clause 442.224A in Part 442 of Schedule 2 to the Principal Regulations.

 

New clause 442.224A provides that the Minister, taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia, must be satisfied at the time of decision that the applicant has adequate means to support himself or herself, or access to adequate means to support himself or herself.

 

The purpose of this amendment is to ensure that holders of a Subclass 442 (Occupational Trainee) visa will be able to adequately support themselves and will not become destitute during the period of their stay.

 

Schedule 6 – Amendments relating to Cultural or Social (Temporary) (Class TE) visa

 

Item [1] – Schedule 1, paragraph 1205(3)(b)

 

This item substitutes paragraph 1205(3)(b) with new paragraph 1205(3)(b) in Schedule 1 to the Principal Regulations.

 

New paragraph 1205(3)(b) provides that all applicants for a Cultural/Social (Temporary) (Class TE) visa, other than an applicant seeking to satisfy the criteria for the grant of a Subclass 416 (Special Program) or a Subclass 420 (Entertainment) visa, must be in Australia to make an application in Australia.

 

The purpose of this amendment is to make clear that, for those applicants for a Class TE visa who are eligible to make an application either in or outside Australia, the applicant must be located in Australia to make an application in Australia.

 

The table below briefly explains the requirements for making a valid application for a Class TE visa in relation to the location of the applicant and where the application may be made, as set out in subitem 1205(3) of Schedule 1 to the Principal Regulations.

 

Visa subclass	Location of applicant at the time of application	Where the application may be made
411 (Exchange)	The applicant may be in or outside Australia, but must be in Australia to make an application in Australia (paragraph 1205(3)(b)).	The application may be made in or outside Australia, but not in immigration clearance (paragraph 1205(3)(a)).
416 (Special Program)	The applicant may be in or outside Australia, except where the applicant is seeking to satisfy a criterion for the grant of a Subclass 416 visa specified in paragraph 416.222(d) of Schedule 2 to the Principal Regulations (seasonal workers), in which case the applicant must be outside Australia when the application is made (paragraph 1205(3)(aa)).	The application must be made by one of the methods described in subparagraph 1205(3)(ba)(i), (ii) or (iii).
420 (Entertainment)	The applicant may be in or outside Australia.	The application must be made by one of the methods described in subparagraph 1205(3)(ca)(i), (ii) or (iii).
Visa subclass	Location of applicant at the time of application	Where the application may be made
421 (Sport)	The applicant may be in or outside Australia, but must be in Australia to make an application in Australia (paragraph 1205(3)(b)).	The application may be made in or outside Australia, but not in immigration clearance (paragraph 1205(3)(a)).
423 (Media and Film Staff)	The applicant may be in or outside Australia, but must be in Australia to make an application in Australia (paragraph 1205(3)(b)).	The application may be made in or outside Australia, but not in immigration clearance (paragraph 1205(3)(a)).
428 (Religious Worker)	The applicant may be in or outside Australia, but must be in Australia to make an application in Australia (paragraph 1205(3)(b)).	The application may be made in or outside Australia, but not in immigration clearance (paragraph 1205(3)(a))..

 

 

Schedule 7 – Amendments relating to partner visas

 

Part 1 – Amendment applicable to all applications for visa

 

Item [1] – Schedule 2, clause 801.411

 

This item substitutes clause 801.411 with a new clause 801.411 in Part 801 of Schedule 2 to the Principal Regulations.

 

New clause 801.411 provides that an applicant for a Partner (Residence) (Class BS) visa must be in Australia, but not in immigration clearance, or outside Australia when a Subclass 801 (Partner) visa is granted.

 

The effect of new clause 801.411 is to allow a Subclass 801 (Partner) visa to be granted to an applicant who is either in Australia but not in immigration clearance, or outside Australia. The only restriction on granting a Subclass 801 (Partner) visa in Australia, therefore, is that the visa could not be granted if the applicant is in immigration clearance.

 

Part 2 – Amendments applicable to application for visa made on or after
27 March 2010

 

Item [2] – Schedule 2, clause 820.111, after definition of court

 

This item inserts a definition of “original sponsor” in clause 820.111 of Part 820 of Schedule 2 to the Principal Regulations, after the definition of “court”.

 

The definition of “original sponsor” provides that an original sponsor means the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for a prospective marriage (temporary) visa as the person whom the applicant intended to marry after entry into Australia.

 

The purpose of the insertion of this new definition is to create a distinction between a person who sponsored an applicant for a prospective marriage (temporary) visa (the “original sponsor”) and a person who subsequently sponsors an applicant for a Partner (Temporary) (Class UK) visa (the “subsequent sponsor”). There is only one visa subclass in the Partner (Temporary) (Class UK) visa class which is the Subclass 820 – Partner visa.

 

Item [3] – Schedule 2, clause 820.111, definition of sponsoring partner

 

This item substitutes the definition of “sponsoring partner” in clause 820.111 of Part 820 of Schedule 2 to the Principal Regulations, with a new definition of “sponsoring partner”.

The new definition of “sponsoring partner” provides that a sponsoring partner means:

 

• in subclauses 820.211(2) and 820.211(2B) and clause 820.221 a sponsoring partner means:
• for an applicant who is, or was, the holder of a prospective marriage (temporary) visa: the original sponsor for the applicant; or the subsequent sponsor for the applicant; or

o       for any other applicant – the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant; and

• in any other provision in Part 820 a sponsoring partner means:
• for an applicant who is, or was, the holder of a prospective marriage (temporary) visa – the original sponsor for the applicant; or
• for any other applicant – the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant.

 

The effect of this amendment is to allow certain applicants who are or were the holder of a prospective marriage (temporary) visa to be sponsored by an original sponsor or a subsequent sponsor in an application for a Partner (Temporary) (Class UK) visa.

 

By limiting when a “subsequent partner” may be a “sponsoring partner” for the time of application criteria in subclauses 820.211(2) and 820.211(2B, the amendment requires an applicant who is or was the holder of a prospective marriage (temporary) visa who is relying on sponsorship by a “subsequent sponsor” to be in a relationship with the “subsequent sponsor” at the time of making their Partner (Temporary) (Class UK) visa application.

 

By also including “subsequent sponsor” in the definition of “sponsoring partner” for the time of decision criteria in clause 820.221 the amendment allows an applicant who is or was the holder of a prospective marriage (temporary) visa who is no longer in a relationship with their “subsequent sponsor” because the “subsequent sponsor” has either died or committed family violence after the Partner (Temporary) (Class UK) visa application has been made to still be eligible for the grant of a Subclass 820 (Partner) visa.

 

The purpose of this amendment is to put beyond doubt that a person who is or was a prospective marriage (temporary) visa holder may be sponsored in an application for a Partner (Temporary) (Class UK) visa by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who was not the sponsor for the prospective marriage (temporary) visa application provided the applicant is in a relationship with the “subsequent sponsor” at the time of applying for a Partner (Temporary) (Class UK) visa.

 

This item also inserts a definition of “subsequent sponsor” in clause 820.111 of Part 820 of Schedule 2 to the Principal Regulations.

 

The new definition of “subsequent sponsor” provides that a subsequent sponsor means a person who:

 

• is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
• is not the original sponsor for the applicant; and
• is the spouse or de facto partner of the applicant.

 

The purpose of the insertion of this new definition is to create a distinction between a person who sponsored an applicant for a prospective marriage (temporary) visa (the “original sponsor”) and a person who subsequently sponsors an applicant for a Partner (Temporary) (Class UK) visa (the “subsequent sponsor”).