MIGRATION AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 13 OF 2011) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MIGRATION AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 13 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 13

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2011 (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 Regulations amend the Migration Regulations 1994 (the Principal Regulations) to strengthen and improve immigration policy.

In particular, the Regulations amend the Principal Regulations to:

* provide that foreign government agencies may be approved as a sponsor for some temporary entry visas (Schedule 1 to the Regulations refers);

* specify the manner in which applications for approval as a temporary work sponsors must be made (Schedule 1 to the Regulations refers);

* specify the manner in which nominations for some temporary visas must be made (Schedule 1 to the Regulations refers);

* replace and update some form numbers in Schedule 1 to the Principal Regulations (Schedule 1 to the Regulations refers);

* ensure that the definition of "principal course" includes an applicant for a Occupational Trainee visa (Schedule 2 to the Regulations refers);

* ensure that the formula for assessing which course is a "principal course" also applies to applicants of an Occupational Trainee visa (Schedule 2 to the Regulations refers);

* correct the letters of the visa class code that were accidentally transposed when regulation 2.03A was inserted into Part 2 to the Principal Regulations, by removing visa class code "Class UT" and replacing with reference to visa class code "Class TU" (Schedule 2 to the Regulations refers);

* enable refusal of a visa application when an applicant provides "bogus documents" (within the meaning of section 97 of the Act) or information that is false or misleading (Schedule 3 to the Regulations refers); and

* prevent the grant of a visa if the applicant has had a application refused under subclause 4020(1) and makes a subsequent application within the period commencing three years before the current application was made, and ending when the Minister makes a decision to grant or refuse the application (Schedule 3 to the Regulations refers).

Details of the Regulations are set out in Attachment B.

The Regulations commence on 2 April 2011.

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by Schedules 1, 2 and 3 to these Regulations and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition. The OBPR consultation references are 11957 (Schedule 1), 11744 (Schedule 2) and 11759 (Schedule 3).

In relation to the amendments made by Schedules 1 and 2 to the Regulations no further consultation were undertaken, 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.

In relation to the amendments made by Schedule 3 to the Regulations the Migration Review Tribunal, the Refugee Review Tribunal and the Commonwealth Ombudsman were 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.

In addition, the following provisions may apply:

* subsection 31(3) of the Act which provides that the regulations may prescribe the 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);

* subsection 40(1) of the Act, which provides that the regulations may provide that visas, or visas of a specified class, may only be granted in specified circumstances;

* section 65 of the Act which provides for the Minister to grant or refuse a valid application for a visa, in particular:

o subparagraph 65(1)(a)(ii) of the Act, which provides that the Minister must grant a valid application for a visa, if satisfied that the criteria for it prescribed by the Act or the Migration Regulations 1994 (the Principal Regulations) have been satisfied.

* section 140E of the Act which deals with approval of a person as a sponsor, in particular:

o subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to 1 or more classes of sponsor prescribed for the purposes of subsection 140(2) if prescribed criteria are satisfied;

o subsection 140E(2) of the Act provides that the regulations must prescribe classes in relation to which a person may be approved as a sponsor; and

o subsection 140E(3) of the Act allows different criteria to be prescribed for different kinds of visa, different classes of sponsor and different classes of person within a class in relation to which a person may be approved as a sponsor;

* section 140F of the Act which deals with the process for approving a person as a sponsor, in particular:

o subsection 140F(1) of the Act provides that the Principal Regulations may establish a process for the Minister to approve a person as a sponsor; and

o subsection 140F(2) of the Act provides that different processes may be prescribed for different kinds of visa and different classes of sponsor;

* section 140G of the Act which deals with the terms of approval as a sponsor, in particular:

o subsection 140G(1) of the Act provides that an approval as a sponsor may be on terms specified in the approval;

o subsection 140G(2) of the Act provides that the terms must be of a kind prescribed by the Principal Regulations;

o subsection 140G(3) of the Act provides that an actual term may be prescribed by the Principal Regulations; and

o subsection 140G(4) provides that different kinds of terms may be prescribed for different kinds of visas and different classes of sponsor;

* section 140GA of the Act which deals with the variation of terms of approval as a sponsor, in particular:

o subsection 140GA(1) of the Act provides that the Principal Regulations may establish a process for the Minister to vary a term of a person's approval as a sponsor;

o subsection 140GA(2) of the Act provides that the Minister must vary a term of approval if the term is of a kind prescribed by the Principal Regulations and the prescribed criteria are satisfied; and

o subsection 140GA(3) of the Act provides that different processes and different criteria may be prescribed for different kinds of visas, different kinds of terms and different classes of sponsor;

* section 140GB of the Act which deals with the approval of a nomination and the power of an approved sponsor to nominate, in particular:

o subsection 140GB(1) of the Act provides that an approved sponsor may nominate:

§ an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

* the applicant, or proposed applicant's proposed occupation;

* the program to be undertaken by the applicant or proposed applicant; or

* the activity to be carried out by the applicant or proposed applicant; or

§ a proposed occupation, program or activity.

o subsection 140GB(2) of the Act provides that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied;

o subsection 140GB(3) of the Act provides that the Principal Regulations may establish a process for the Minister to approve an approved sponsor's nomination; and

o subsection 140GB(4) of the Act provides that different criteria and different processes may be prescribed for different kinds of visa and different classes of sponsor.

ATTACHMENT B

Details of the Migration Amendment Regulations 2011 (No. 1)

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2011 (No. 1).

Regulation 2 - Commencement

This regulation provides for the Regulations to commence on 2 April 2011.

Regulation 3 - Amendment of Migration Regulations 1994 - Schedule 1

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

Paragraph 3(2)(a) provides that the amendments made by Schedule 1 apply in relation to an application under the Principal Regulations for approval of a person as a sponsor made on or after 2 April 2011.

Paragraph 3(2)(b) provides that the amendments made by Schedule 1 apply in relation to a nomination of an occupation, a program or an activity made under the Principal Regulations on or after 2 April 2011.

Subregulation 3(3) provides that an instrument mentioned in an item in the table and in force under the Principal Regulations immediately before 2 April 2011 continues in force on and after that date as described in that item.

Subregulation 3(4) provides for the definition of the terms "amended Regulations" and "old Regulations" which are used in the table in subregulation 3(3).

Regulation 4 - Amendment of Migration Regulations 1994 - Schedule 2

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

Subregulation 4(2) provides that the amendments made by items [1] and [2] of Schedule 2 apply to a visa application made on or after 2 April 2011.

Regulation 5 - Amendment of Migration Regulations 1994 - Schedule 3

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

Paragraph 5(2)(a) provides that the amendments made by Schedule 3 apply in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)), before 2 April 2011.

Paragraph 5(2)(b) provides that the amendments made by Schedule 3 apply in relation to an application for a visa made on or after 2 April 2011.

Schedule 1 - Amendments relating to temporary work sponsorship

Item [1] - Paragraph 2.60B(b)

This item omits "agency." and inserts "agency; or" in paragraph 2.60B(b) in Division 2.13 of Part 2A to the Principal Regulations.

This amendment is consequential to the amendment proposed by item [2], which inserts new paragraph 2.60B(c).

Item [2] - After paragraph 2.60B(b)

This item inserts a new paragraph 2.60B(c) after paragraph 2.60B(b) in Division 2.13 of Part 2A to the Principal Regulations.

Regulation 2.60B currently provides the criterion which must be satisfied for the Minister to approve an application by a person for approval as an exchange sponsor.

New paragraph 2.60B(c) provides that for subsection 140E(1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as an exchange sponsor includes that the person may be a "foreign government agency".

"Foreign government agency" is defined in subregulation 2.57(1) of Division 2.11 of Part 2A to the Principal Regulations as including the following:

an organisation:

o that is conducted under the official auspices of a foreign national government; and

o that is operating in Australia;

including foreign tourist and media bureaus, trade offices and other foreign government entities;

a foreign diplomatic or consular mission in Australia;
an organisation conducted under the official auspices of an international organisation recognised by Australia.

Currently, the criteria for approval as an exchange sponsor does not allow for a "foreign government agency" to be approved as a sponsor. As a result, some applicants who would ordinarily enter Australia using the Subclass 411 (Exchange) visa, but undertake activities proposed by a "foreign government agency" have entered Australia under other visa programs, for example, the short stay business and visitor visas programs. Due to the nature of the activities proposed to be undertaken, not all applicants can be accommodated in alternative visa programs. This has necessitated the broadening of the sponsorship criteria to allow foreign government agencies to be approved as an exchange sponsor.

This amendment allows a "foreign government agency" to be approved as an exchange sponsor. As a consequence, a "foreign government agency" which is approved as an exchange sponsor is subject to sponsorship obligations and sanctions as set out in Part 2A to the Principal Regulations.

Item [3] - After paragraph 2.60F(b)

This item inserts a new paragraph 2.60F(ba) in Division 2.13 of Part 2A to the Principal Regulations.

Regulation 2.60F provides a criterion which must be satisfied for the Minister to approve an application for approval as an entertainment sponsor.

New paragraph 2.60F(ba) provides that, for subsection 140E(1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as an entertainment sponsor includes that the person may be a "foreign government agency".

"Foreign government agency" is defined in subregulation 2.57(1) of Division 2.11 of Part 2A to the Principal Regulations. A full description of that definition is provided at item [2].

Currently, the criteria for approval as an entertainment sponsor does not allow for a "foreign government agency" to be approved as a sponsor. As a result, some applicants who would ordinarily enter Australia using the Subclass 420 (Entertainment) visa, but undertake activities proposed by a "foreign government agency" have entered Australia under other visa programs, for example, the short stay business and visitor visas programs. Due to the nature of the activities proposed to be undertaken, not all applicants can be accommodated in alternative visa programs. This has necessitated the broadening of the sponsorship criteria to allow foreign government agencies to be approved as an entertainment sponsor.

This amendment allows "foreign government agency" to be approved as an entertainment sponsor. As a consequence, a "foreign government agency" which is approved as an entertainment sponsor is subject to sponsorship obligations and sanctions as set out in Part 2A to the Principal Regulations.

Item [4] - Regulation 2.60G

This item omits "the person is a sporting organisation that is lawfully operating in Australia" and inserts "the person is:

a sporting organisation that is lawfully operating in Australia; or
a government agency; or
a foreign government agency."

in regulation 2.60G of Division 2.13 of Part 2A to the Principal Regulations.

Regulation 2.60G provides the criterion which must be satisfied for the Minister to approve an application for approval as a sport sponsor.

Amended regulation 2.60G provides that for, subsection 140E(1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a sport sponsor, namely that the person is:

a sporting organisation that is lawfully operating in Australia; or
a government agency; or
a foreign government agency.

Currently, the criteria for approval as a sport sponsor only permits sponsorship by a "sporting organisation that is lawfully operating in Australia". The term "sporting organisation" is defined in subregulation 2.57(1) of Division 2.11 of Part 2A to the Principal Regulations as "an Australian organisation that administers or promotes sport or sporting events".

Government Agencies do not fit within the definition of "sporting organisation" even though there is a strong policy case to allow those agencies to sponsor individuals under the Subclass 421 (Sport) visa.

This amendment allows "government agencies" and "foreign government agencies" to be approved as a sport sponsor. As a consequence a "government agency" or "foreign government agency" which is approved as a sport sponsor is subject to sponsorship obligations and sanctions as set out in Part 2A to the Principal Regulations.

Item [5] - Paragraph 2.60J(b)

This item omits "agency." and inserts "agency; or" in paragraph 2.60J(b) in regulation 2.60J in Division 2.13 of Part 2A to the Principal Regulations.

This amendment is consequential to the amendment proposed by item [6], which inserts a new paragraph 2.60J(c).

Item [6] - After paragraph 2.60J(b)

This item inserts a new paragraph 2.60J(c) in Division 2.13 of Part 2A to the Principal Regulations.

New paragraph 2.60J(c) provides that, for subsection 140E(1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a occupational trainee sponsor includes that the person may be a "foreign government agency".

"Foreign government agency" is defined in subregulation 2.57(1) of Division 2.11 of Part 2A to the Principal Regulations. A full description of that definition is provided at item [2].

Currently, the criteria for approval as an occupational trainee sponsor does not allow for a "foreign government agency" to be approved as a sponsor. As a result, some applicants who would ordinarily enter Australia using the Subclass 442 (Occupational Trainee) visa, but undertake activities proposed by a "foreign government agency" have entered Australia under other visa programs, for example, the short stay business and visitor visas programs. Due to the nature of the activities proposed to be undertaken, not all applicants can be accommodated in alternative visa programs. This has necessitated the broadening of the sponsorship criteria to allow foreign government agencies to be approved as an occupational trainee sponsor.

This amendment allows a "foreign government agency" to be approved as an occupational trainee sponsor. As a consequence a "foreign government agency" which is approved as an occupational trainee sponsor is subject to sponsorship obligations and sanctions as set out in Part 2A to the Principal Regulations.

Items [7], [9], [11] [13], [15], [17], and [19] - Subparagraphs 2.61(4)(a)(ii), 2.61(6)(a)(ii), Sub-subparagraph 2.66A(2)(b)(i)(B), Subparagraphs 2.66A(6)(a)(ii), 2.73A(5)(a)(ii), 2.73B(6)(a)(ii), and 2.73C(6)(a)(ii)

These items omit the word "legislative" from each of the subparagraphs and sub-subparagraphs listed in Part 2A to the Principal Regulations.

These amendments correct a minor technical error.

Item [8] - Paragraphs 2.61(4)(b) and (c)

This item substitutes paragraphs 2.61(4)(b) and (c) with new paragraphs 2.61(4)(b) and (c) in Division 2.14 of Part 2A to the Principal Regulations.

Current subregulation 2.61(4) provides that if a person is applying to be approved as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by:

* posting the application (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.61(4)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.61(4)(a)(i) - to an office of Immigration in Australia; or

* delivering the application by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for paragraph 2.61(4)(b); or

* faxing the application to the fax number specified by the Minister in an instrument in writing for paragraph 2.61(4)(c).

New paragraph 2.61(4)(b) provides that if a person is applying to be approved as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by delivering the application by courier service, or otherwise by hand:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.61(4)(b)(i); or

* if no instrument has been made for subparagraph 2.61(4)(b)(i) - to an office of Immigration in Australia.

New paragraph 2.61(4)(c) provides that if a person is applying to be approved as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by faxing the application:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.61(4)(c)(i); or

* if no instrument has been made for subparagraph 2.61(4)(c)(i) - to an office of Immigration in Australia.

This amendment provides that if an address or fax number is not specified by the Minister in an instrument writing for the purposes of delivering an application by courier service or otherwise by hand, or faxing the application, that an applicant may apply for approval as a temporary work sponsor (other than a superyacht crew sponsor) by delivering or faxing the application to any office of Immigration in Australia. This is consistent with paragraph 2.61(4)(a) and the policy supporting applications made by post.

Item [10] - Paragraphs 2.61(6)(b) and (c)

This item substitutes paragraphs 2.61(6)(b) and (c) with new paragraphs 2.61(6)(b) and (c) in Division 2.14 of Part 2A to the Principal Regulations.

Current subregulation 2.61(6) provides that if a person is applying to be approved as a superyacht crew sponsor, the person must make the application by:

* posting the application (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.61(6)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.61(6)(a)(i) - to an office of Immigration in Australia; or

* delivering the application by courier service to the address specified by the Minister in an instrument in writing for subparagraph 2.61(6)(b); or

* faxing the application to the fax number specified by the Minister in an instrument in writing for subparagraph 2.61(6)(c).

New paragraph 2.61(6)(b) provides that if a person is applying to be approved as a superyacht crew sponsor, the person must make the application by delivering the application by courier service:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.61(6)(b)(i); or

* if no instrument has been made for subparagraph 2.61(6)(b)(i) - to an office of Immigration in Australia.

New paragraph 2.61(6)(c) provides that if a person is applying to be approved as a superyacht crew sponsor, the person must make the application by faxing the application:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.61(6)(c)(i); or

* if no instrument has been made for subparagraph 2.61(6)(c)(i) - to an office of Immigration in Australia.

This amendment provides that if that an address or fax number was not specified by the Minister in an instrument writing for the purposes of delivering an application by courier service or otherwise by hand, or faxing the application, that an applicant may apply for approval as a superyacht crew sponsor at any office of Immigration in Australia, this is consistent with paragraph 2.61(6)(a) and the policy supporting applications made by post.

Item [12] - Subparagraphs 2.66A(2)(b)(ii) and (iii)

This item substitutes subparagraphs 2.66A(2)(b)(ii) and (iii) with new subparagraphs 2.66A(2)(b)(ii) and (iii) in Division 2.16 of Part 2A to the Principal Regulations.

Current paragraph 2.66A(2)(b) provides that if a person is applying to vary a term of approval as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by:

* posting the application (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for sub-subparagraph 2.66A(2)(b)(i)(A); or

o if no legislative instrument has been made for sub-subparagraph 2.66A(2)(b)(i)(A) - to an office of Immigration in Australia; or

* delivering the application by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for subparagraph 2.66A(2)(b)(ii); or

* faxing the application to the fax number specified by the Minister in an instrument in writing for subparagraph 2.66A(2)(b)(iii).

New subparagraph 2.66A(2)(b)(ii) provides that if a person is applying to vary a term of approval as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by delivering the application by courier service, or otherwise by hand:

* to the address specified by the Minister in an instrument in writing for
sub-subparagraph 2.66A(2)(b)(ii)(A); or

* if no instrument has been made for sub-subparagraph 2.66A(2)(b)(ii)(A) - to an office of Immigration in Australia.

New subparagraph 2.66A(2)(b)(iii) provides that if a person is applying to vary a term of approval as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application by faxing the application:

* to the fax number specified by the Minister in an instrument in writing for
sub-subparagraph 2.66A(2)(b)(iii)(A); or

* if no instrument has been made for sub-subparagraph 2.66A(2)(b)(iii)(A) - to an office of Immigration in Australia.

This amendment provides consistency in the application delivery methods available to applicants who seek to be approved as a temporary work sponsor, as proposed by item [8] and applications for the variation of the terms or approval as a temporary work sponsor.

Item [14] - Paragraphs 2.66A(6)(b) and (c)

This item substitutes paragraphs 2.66A(6)(b) and (c) with new paragraphs 2.66A(6)(b) and (c) in Division 2.16 of Part 2A to the Principal Regulations.

Current subclause 2.66A(6) provides that if a person is applying to vary a term of approval as a superyacht crew sponsor, the person must make the application by:

* posting the application (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.66A(6)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.66A(6)(a)(i) - to an office of Immigration in Australia; or

* delivering the application by courier service to the address specified by the Minister in an instrument in writing for paragraph 2.66A(6)(b); or

* faxing the application to the fax number specified by the Minister in an instrument in writing for paragraph 2.66A(6)(c).

New paragraph 2.66A(6)(b) provides that if a person is applying to vary a term of approval as a superyacht crew sponsor, the person must make the application by delivering the application by courier service:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.66A(6)(b)(i); or

* if no instrument has been made for subparagraph 2.66A(6)(b)(i) - to an office of Immigration in Australia.

New paragraph 2.66A(6)(c) provides that if a person is applying to vary a term of approval as a superyacht crew sponsor, the person must make the application by faxing the application:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.66A(6)(c)(i); or

* if no instrument has been made for subparagraph 2.66A(6)(c)(i) - to an office of Immigration in Australia.

This amendment provides consistency in the application delivery methods available to applicants who seek to be approved as a superyacht crew sponsor, as proposed by item [10] and applications for the variation of the terms or approval as a temporary work sponsor.

Item [16] - Paragraphs 2.73A(5)(b) and (c)

This item substitutes paragraphs 2.73A(5)(b) and (c) with new paragraphs 2.73A(5)(b) and (c) in regulation 2.73A in Division 2.17 of Part 2A to the Principal Regulations.

Current subregulation 2.73A(5) provides that if a person is nominating an occupation, a program or an activity under paragraph 140GB(1)(b) of the Act, and that person identifies in the nomination the person who will work or participate in the occupation, program or activity, a holder of, or an applicant or a proposed applicant for, a:

* Subclass 411 (Exchange) visa;

* Subclass 419 (Visiting Academic) visa;

* Subclass 427 (Domestic Worker (Temporary) - Executive) visa;

* Subclass 428 (Religious Worker) visa; or

* Subclass 442 (Occupational Trainee) visa,

the nomination must be made by:

* posting the nomination (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.73A(5)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.73A(5)(a)(i) - to an office of Immigration in Australia; or

* delivering the nomination by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for paragraph 2.73A(5)(b); or

* faxing the nomination to the fax number specified by the Minister in an instrument in writing for paragraph 2.73A(5)(c).

New paragraph 2.73A(5)(b) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by courier service, or otherwise by hand:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.73A(5)(b)(i); or

* if no instrument has been made for subparagraph 2.73A(5)(b)(i) - to an office of Immigration in Australia.

New paragraph 2.73A(5)(c) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by faxing the nomination:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.73A(5)(c)(i); or

* if no instrument has been made for subparagraph 2.73A(5)(c)(i) - to an office of Immigration in Australia.

This amendment provides consistency in the application delivery methods available to applicants who seek to be approved as a temporary work sponsor, as proposed by item [8] and nominations made by a temporary work sponsor of an occupation, a program or activity.

Item [18] - Paragraphs 2.73B(6)(b) and (c)

This item substitutes paragraphs 2.73B(6)(b) and (c) with new paragraphs 2.73B(6)(b) and (c) in regulation 2.73B in Division 2.17 of Part 2A to the Principal Regulations.

Current subregulation 2.73B(6) provides that if a person is nominating an occupation, a program or an activity under paragraph 140GB(1)(b) of the Act, and that person identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 420 (Entertainment) visa or a Subclass 423 (Media and Film Staff) visa as the person who will work or participate in the occupation, program or activity, the nomination must be made by:

* posting the nomination (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.73B(6)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.73B(6)(a)(i) - to an office of Immigration in Australia; or

* delivering the nomination by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for paragraph 2.73B(6)(b); or

* faxing the nomination to the fax number specified by the Minister in an instrument in writing for paragraph 2.73B(6)(c).

New paragraph 2.73B(6)(b) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by courier service, or otherwise by hand:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.73B(6)(b)(i); or

* if no instrument has been made for subparagraph 2.73B(6)(b)(i) - to an office of Immigration in Australia.

New subparagraph 2.73B(6)(c) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by faxing the nomination:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.73B(6)(c)(i); or

* if no instrument has been made for subparagraph 2.73B(6)(c)(i) - to an office of Immigration in Australia.

Item [20] - Paragraphs 2.73C(6)(b) and (c)

This item substitutes paragraphs 2.73C(6)(b) and (c) with new paragraphs 2.73C(6)(b) and (c) in regulation 2.73C in Division 2.17 of Part 2A to the Principal Regulations.

Subclause 2.73C(6) provides that if a person is nominating an occupation, a program or an activity under paragraph 140GB(1)(b) of the Act, and that person identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 421 (Sport) visa as the person who will work or participate in the occupation, program or activity, the nomination must be made by:

* posting the nomination (with the correct prepaid postage):

o to the address specified by the Minister in an instrument in writing for subparagraph 2.73C(6)(a)(i); or

o if no legislative instrument has been made for subparagraph 2.73C(6)(a)(i) - to an office of Immigration in Australia; or

* delivering the nomination by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for paragraph 2.73C(6)(b); or

* faxing the nomination to the fax number specified by the Minister in an instrument in writing for paragraph 2.73C(6)(c).

New paragraph 2.73C(6)(b) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by courier service, or otherwise by hand:

* to the address specified by the Minister in an instrument in writing for subparagraph 2.73C(6)(b)(i); or

* if no instrument has been made for subparagraph 2.73C(6)(b)(i) - to an office of Immigration in Australia.

New subparagraph 2.73C(6)(c) provides that if a person is nominating an occupation, a program or an activity in the circumstances described above, the nomination must be made by faxing the nomination:

* to the fax number specified by the Minister in an instrument in writing for subparagraph 2.73C(6)(c)(i); or

* if no instrument has been made for subparagraph 2.73C(6)(c)(i) - to an office of Immigration in Australia.

This amendment provides consistency in the delivery methods of applications for approval as a temporary work sponsor, as proposed by item [8] and nominations made by a temporary work sponsor of an occupation, a program or activity

Item [21] - Schedule 1, subitem 1212B(1)

This item substitutes subitem 1212B(1) of Schedule 1 to the Principal Regulations with new subitem 1212B(1).

New subitem 1212B(1) replaces existing form 147 with form 1383. Form 1383 is the new form required to apply for an Investor Retirement (Class UY) visa.

This amendment provides that applicants for an Investor Retirement (Class UY) visa must use a form 1383 to make a valid visa application for that visa class. The new form 1383 reflects the requirements of the Investor Retirement (Class UY) visa more appropriately than the form 147.

Item [22] - Schedule 1, subitem 1217(1)

This item substitutes subitem 1217(1) of Schedule 1 to the Principal Regulations with new subitem 1217(1).

New subitem 1217(1) replaces existing form 147 with form 1383. Form 1383 is the new form required to apply for a Retirement (Temporary) (Class TQ) visa.

This amendment provides that applicants for a Retirement (Temporary) (Class TQ) visa must use a form 1383 to make a valid application for that visa class. The new form 1383 reflects the requirements of the Retirement (Temporary) (Class TQ) visa more appropriately than the form 147.

Item [23] - Schedule 1, subitem 1301(1)

This item omits forms "1365 or 1365 (Internet)." and inserts "1365, 1365 (Internet) or 1383." in subitem 1301(1) in Schedule 1 to the Principal Regulations.

The purpose of the amendment to subitem 1301(1) is to include new form 1383 to the list of forms that may be used to apply for a Bridging A (Class WA) visa.

This amendment ensures that an applicant for a Investor Retirement (Class UY) visa or a Retirement (Temporary) (Class TQ) visa can make an application for a Bridging A (Class WA) visa using the same form as the application for the Investor Retirement (Class UY) visa or a Retirement (Temporary) (Class TQ) visa.

Item [24] - Schedule 1, subitems 1303(1) and 1305(1)

This item omits forms "1276 or 1276 (Internet)." and inserts "1276, 1276 (Internet) or 1383." in subitems 1303(1) and 1305(1) in Schedule 1 to the Principal Regulations.

The purpose of the amendment to subitems 1303(1) and 1305(1) is to include new form 1383 to the list of forms that are acceptable in applying for Bridging C (Class WC) and Bridging E (Class WE) visas respectively.

This amendment ensures that an applicant for a Investor Retirement (Class UY) visa or a Retirement (Temporary) (Class TQ) visa can make an application for a Bridging C (Class WC) visa or a Bridging E (Class WE) visa using the same form as the application for the Investor Retirement (Class UY) visa or a Retirement (Temporary) (Class TQ) visa.

Schedule 2 - Amendments relating to occupational trainees

Item [1] - Subregulation 1.40(2)

This item omits "course or an occupational trainee" and inserts "course, or an applicant for a Subclass 442 (Occupational Trainee) visa" in subregulation 1.40(2) in Division 1.8 of Part 1 to the Principal Regulations.

Subregulation 1.40(2) currently refers to "course or an occupational trainee". "Occupational trainee" is a term that is defined in regulation 1.03 in Division 1.2 of Part 1 to the Principal Regulations as "a person who is in Australia as a holder of a Subclass 442 (Occupational Trainee) visa". The amendment means that subregulation 1.40(2) specifically refers to "an applicant for a Subclass 442 (Occupational Trainee) visa".

This amendment provides that the definition of "principal course" applies to Subclass 442 (Occupational Trainee) visa applicants. It ensures that an applicant for a Subclass 442 (Occupational Trainee) visa is only eligible to be granted the Subclass 442 (Occupational Trainee) visa if they have completed a course of study that is a registered course and that course is the "principal course".

Item [2] - Paragraph 1.40(3)(a)

This item omits "courses or an occupational trainee" and inserts "courses, or an applicant for a Subclass 442 (Occupational Trainee) visa" in paragraph 1.40(3)(a) in Division 1.8 of Part 1 to the Principal Regulations.

Subregulation 1.40(3) currently refers to "courses or an occupational trainee". "Occupational trainee" is a term that is defined in regulation 1.03 in Division 1.2 of Part 1 to the Principal Regulations as "a person who is in Australia as a holder of a Subclass 442 (Occupational Trainee) visa". The amendment means that paragraph 1.40(3)(a) specifically refers to "an applicant for a Subclass 442 (Occupational Trainee) visa".

This amendment clarifies that the formula for determining whether a course of study is the "principal course" for the purposes of paragraph 1.40(3)(a) of the Principal Regulations, applies to an applicant for a Subclass 442 (Occupational Trainee) visa.

Item [3] - Subparagraph 2.03A(3)(a)(iii)

This item omits "UT" and inserts "TU" in subparagraph 2.03A(3)(a)(iii) in Division 2.1 of Part 2 to the Principal Regulations.

This amendment corrects a typographical error in the visa class code in subparagraph 2.03A(3)(a)(iii) in Division 2.1 of Part 2 to the Principal Regulations to ensure that the Student (Temporary) (Class TU) visa is correctly cited in subparagraph 2.03A(3)(a)(iii).

Schedule 3 - Amendments relating to public interest criteria

Item [1] - Schedule 2, clause 495.220

This item omits "495.224," in clause 495.220 of Part 495 of Schedule 2 to the Principal Regulations.

This amendment updates the cross-referencing in clause 495.220 and is consequential to the amendment proposed by item [5] which omits clause 495.224 from Part 495 of Schedule 2 to the Principal Regulations.

Item [2] - Schedule 2, clause 496.221

This item omits "496.227" and inserts "496.228" in clause 496.221 of Part 496 of Schedule 2 to the Principal Regulations.

This amendment updates the cross-referencing in clause 496.221 and is consequential to the amendment proposed by item [5] which omits clause 496.227 from Part 496 of Schedule 2 to the Principal Regulations.

Item [3] - Schedule 4, Part 1, after clause 4019

This item inserts new clause 4020 in Schedule 4 to the Principal Regulations.

New subclause 4020(1) provides that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

* the application for the visa; or

* a visa that the applicant held in the period of 12 months before the application was made.

Section 97 of Part 2 of the Act provides that a "bogus document" in relation to a person, means a document that the Minister reasonably suspects is a document that:

* purports to have been, but was not, issued in respect of the person; or

* is counterfeit or has been altered by a person who does not have authority to do so; or

* was obtained because of a false or misleading statement, whether or not made knowingly.

Sections 97 to 106 of the Act, in general, place obligations on applicants to provide correct information and to correct any incorrect information whether at the time of application or subsequently prior to visa grant. In circumstances where incorrect information is provided, the Minister may cancel under section 109 of the Act any visa that has been granted. The application of section 109 of the Act depends on a visa having been granted.

Section 65 of the Act provides that after considering valid visa application, the Minister must grant the visa if the applicant has satisfied the prescribed criteria, provided that there are no statutory bars to the visa being granted. Currently, the power to refuse a visa application on the basis that the visa applicant has false or misleading information is extremely limited. The relevant Schedule 2 criteria are not of general applicability, and relate only to false or misleading information provided by a primary visa applicant to satisfy certain specific requirements. Further, it is common practice that a visa applicant will seek to withdraw the bogus documents, or false or misleading information or find alternative methods of satisfying the relevant visa criteria without relying on the false information. In circumstances where this occurs, a decision maker is required to accept the request to withdraw the information and continue to process the application.

It is intended that the reference to "information which is false or misleading in a material particular" in the new subclause 4020(1) will capture any information which is false or misleading that the applicant provides if it is relevant to the purpose for which it is made, namely the purpose being the assessment of the applicant against any of the criteria for the grant of the visa for which he or she has applied, or a visa that the applicant held in the 12 months before the application was made.

This subclause in conjunction with the insertion into certain visa criteria in Schedule 2 of references to the new clause 4020 by item [4] provides the Minister with a ground to refuse a visa application in circumstances where the new clause 4020 is not satisfied by the applicant.

New subclause 4020(2) provides that the Minister is satisfied that during the period:

* starting 3 years before the application was made; and

* ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause 4020(1).

This subclause prevents a visa applicant from satisfying the new clause 4020 in circumstances where a previous visa application has been refused, due to the applicant's or a member of the applicant's family unit's failure to satisfy subclause 4020(1), provided the previous refusal occurred within the period commencing three years before the current application was made, and ending when a decision is made by the Minister to refuse or grant the application.

New subclause 4020(3) provides, to avoid doubt, that subclause 4020(1) and subclause 4020(2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of the information given by the applicant.

New subclause 4020(4) provides that the Minister may waive the requirements of any or all of paragraphs 4020(1)(a) or (b) and subclause 4020(2) if satisfied that:

* compelling circumstances that affect the interests of Australia; or

* compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

This subclause provides the Minister with a discretionary power to waive the requirements of the clause 4020 in circumstances where the Minister is satisfied that there are sufficient grounds to justify the granting of the visa. It is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia's interests (or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), not the interests of the visa applicant.

The types of circumstances that may involve compelling or compassionate reason for waiving any or all of paragraphs 4020(1)(a) or (b) and subclause 4020(2) include:

* family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

* that family members in Australia would be left without financial or emotional support; and

* a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).

New subclause 4020(5) provides that in this clause information that is false or misleading in a material particular means information that is:

* false or misleading at the time it was given; and

* relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

The note to new clause 4020 provides that under regulation 1.03 of Part 1 to the Regulations, the term "bogus document" has the same meaning as in section 97 of the Act.

Item [4] Schedule 2 - further amendments

The amendments in this item insert the new clause 4020 as a criterion to be satisfied in each of the listed provisions of Schedule 2 to the Principal Regulations. This gives effect to the insertion of the new clause 4020 in Schedule 4 to the Principal Regulations by item [3], which enables the Minister to assess visa applicants against the criteria contained within the new clause 4020.

Item [5] - Schedule 2 - Omissions

This item omits each of the clauses from Schedule 2 to the Principal Regulations.

Currently, each of the omitted clauses contain criteria in which a primary applicant, at the time of decision of the visa application, must satisfy the decision maker that no evidence has become available since the time of application that the information given or used to meet certain requirements in Schedule 1 or to satisfy certain criteria in Schedule 2 was false or misleading in a material particular.

The existing provisions provide grounds for refusal of a visa application in circumstances where a primary visa applicant has provided false and misleading information to satisfy the requirements listed in the provision.

This amendment ensures that a primary visa applicant is not required to satisfy a separate visa criterion in addition to the new clause 4020, which seeks to prevent the same mischief as the clause 4020. Each of the amendments is consequential to the amendments which are proposed by item [4]. Item [4] provides for the insertion of the new clause 4020 in Schedule 4 to the Principal Regulations.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback