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 5(1) of the Act, which provides that "prescribed" means prescribed by the regulations;

*         subsection 31(1) of the Act, which provides that the Migration Regulations 1994 (the Principal Regulations) may prescribe classes of visas;

*         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);

*         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 58(2) of the Act, which provides that, subject to subsection 58(4), the regulations may prescribe a period within which additional information or comments are to be given in response to the Minister's invitation to give further information or comments otherwise than at an interview;

*         section 65 of the Act, which provides for the Minister to grant or refuse a visa.  In particular:

-         subparagraph 65(1)(a)(i) of the Act, which provides that, after considering a valid application for a visa, the Minister is to grant the visa, if satisfied that the health criteria for it (if any) have been satisfied;

-         subparagraph 65(1)(a)(ii) of the Act, which provides that, after considering a valid application for a visa, the Minister is to grant the visa, if satisfied that the criteria for it prescribed by the Act or the Principal Regulations have been satisfied; and

-         paragraph 65(1)(b) of the Act, which provides that, after considering a valid application for a visa, the Minister is to refuse to grant the visa if not satisfied that the relevant criteria are met.

*         paragraph 504(1)(e) of the Act, which provides that regulations may be made in relation to the giving of documents to, the lodging of documents with, or the service of documents on, the Minister, the Secretary or any other person or body, for the purposes of the Act;

• section 505 of the Act, which provides that, to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

-        is to get a specified person or organisation, or a person or organisation in a specified class, to: give an opinion on a specified matter; make an assessment of a specified matter; make a finding about a specified matter; or make a decision about a specified matter; and

-        is to have regard to that opinion, assessment, finding or decision in (or to take that opinion, assessment, finding or decision to be correct for the purposes of) deciding whether the applicant satisfies the criterion;

 

ATTACHMENT B

The Regulations amend the Migration Regulations 1994 (the Principal Regulations) to:

• apply public interest criterion 4020 to all student visas and other certain visas (Schedule 1 refers);
• introduce a genuine temporary entrant criterion that must be satisfied by all primary applicants for Student visas except for "permission to work" applicants and all secondary applicants for Student visas except secondary applicants for permission to work and secondary applicants for Subclass 580 (Student Guardian) visas (Schedule 2 refers);
• amend English language requirements for Assessment Level (AL) 4 and AL 5 Subclass 570 (Independent ELICOS Sector) visas so that they are consistent with AL1 to AL3 English language requirements (Schedule 2 refers);
• reduce evidence of funds from an acceptable source for AL 4 applicants from 36 to 24 months and their savings history from six to three months; and reduce evidence of funds from an acceptable source for AL3 applicants from 24 to 18 months (Schedule 2 refers);
• provide that the costs of certain health care and community services must be assessed by a Medical Officer of the Commonwealth in determining whether or not a visa applicant meets the relevant health requirement.  Those health care and community services would be those that are not specified in an instrument that would be made by the Minister in writing (Schedule 3 refers); and
• provide that if an invitation to give additional information or comment on relevant information is given to an applicant in Australia by telephone, then the timeframe for providing the response is 7 days after the telephone conversation (Schedule 4 refers).

 

 

 

ATTACHMENT C

Details of the Migration Amendment Regulations 2011 No. 6)

Regulation 1 - Name of Regulations

Regulation 1 provides that the title of the Regulations is the Migration Amendment Regulations 2011 (No. 6).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 5 November 2011.

Regulation 3 - Amendment of Migration Regulations 1994 - Schedule 1

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

Subregulation 3(2) provides that the amendments made by item [1] of Schedule 1 apply in relation to an application for a visa:

• made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 5 November 2011; or
• made on or after 5 November 2011.

Subregulation 3(3) provides that the amendments made by item [2] of Schedule 1 apply in relation to an application for a visa made on or after 5 November 2011.

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 Schedule 2 apply in relation to an application for a visa made on or after 5 November 2011.

 

Regulation 5 - Amendment of Migration Regulations 1994 - Schedule 3

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

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

Regulation 6 - Amendment of Migration Regulations 1994 - Schedule 4

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

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an invitation, given under section 56 or 57 of the Migration Act 1958 on or after 5 November 2011, to give additional information or comments.

 

Schedule 1 - Amendments of Migration Regulations 1994  relating to public interest criterion 4020

Item [1] - Amendments

This item amends each of the listed provisions of Schedule 2 to the Migration Regulations 1994 (the Principal Regulations) to insert clause 4020 as a public interest criterion that an applicant for the relevant visa is required to satisfy. 

In general, clause 4020 enables the refusal of a visa grant when an applicant provides bogus documents or information that is false or misleading.  It also prevents the visa grant if the applicant has had a visa refused because of subclause 4020(1) and makes a subsequent application for a visa during the period commencing three years before the application was made and ending when the Minister makes a decision to grant or refuse the application.  However, subclause 4020(4) provides that the Minster may waive a requirement under clause 4020 if the Minister is satisfied that compelling, or compassionate circumstances, justify the granting of the visa.

The effect of the amendments is that a person applying for one of the below visas would be required to satisfy clause 4020:

• a Business Skills - Business Talent (Migrant) (Class EA) visa;
• a Business Skills - Established Business (Residence) (Class BH) visa;
• a Business Skills (Provisional) (Class UR) visa; or
• a Business Skills (Residence) (Class DF) visa.

According to subregulation 3(2) of the Regulations, the amendments apply in relation to an application for any of those visas:

• made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 5 November 2011; or
• made on or after 5 November 2011.

Item [2] - Further amendments

This item amends each of the listed provisions of Schedule 2 to the Principal Regulations to insert clause 4020 as a public interest criterion that an applicant for the relevant visa is required to satisfy.  The listed provisions are in relation to student visas and a Subclass 580 (Student Guardian) visa.

In general, clause 4020 enables the refusal of a visa grant when an applicant provides bogus documents or information that is false or misleading.  It also prevents the visa grant if the applicant has had a visa refused because of subclause 4020(1) and makes a subsequent application for a visa during the period commencing three years before the application was made and ending when the Minister makes a decision to grant or refuse the application.  However, subclause 4020(4) provides that the Minster may waive a requirement under clause 4020 if the Minister is satisfied that compelling, or compassionate circumstances, justify the granting of the visa.

The effect of the amendments is that a person applying for a student visa, or a Subclass 580 (Student Guardian) visa, would be required to satisfy clause 4020.

According to subregulation 3(3) of the Regulations, the amendments apply in relation to an application for any of those visas made on or after 5 November 2011.

 

Schedule 2 - Amendments of Migration Regulations 1994  relating to student visas

Item [1] - Schedule 2, subclause 570.223(1)

This item substitutes subclause 570.223(1) in Part 570 of Schedule 2 to the Migration Regulations 1994 (the Principal Regulations).

Clause 570.223 is a time of decision criterion for the grant of a Subclass 570 (Independent ELICOS Sector) visa.  Currently, subclause 570.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 570.223(2). 

Broadly, subclause 570.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 570.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

• the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

• the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 570.223(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 570.223, the applicant must be both a genuine student and a genuine temporary entrant. 

Item [2] - Schedule 2, before paragraph 570.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 570.326 in Part 570 of Schedule 2 to the Principal Regulations. 

Clause 570.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 570 (Independent ELICOS Sector) visa.  Clause 570.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 570 visa. 

New paragraph 570.326(a) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

• the applicant's circumstances; and
• the applicant's immigration history; and
• if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily. 

Item [3] - Schedule 2, subclause 571.223(1)

This item substitutes subclause 571.223(1) in Part 571 of Schedule 2 to the Principal Regulations.

Clause 571.223 is a time of decision criterion for the grant of a Subclass 571 (Schools Sector) visa.  Currently, subclause 571.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 571.223(2). 

Broadly, subclause 571.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 571.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

• the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

• the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 571.223(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 571.223, the applicant must be both a genuine student and a genuine temporary entrant. 

Item [4] - Schedule 2, before paragraph 571.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 571.326 in Part 571 of Schedule 2 to the Principal Regulations. 

Clause 571.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 571(Schools Sector) visa.  Clause 571.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 571 visa. 

New paragraph 571.326(aa) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

• the applicant's circumstances; and
• the applicant's immigration history; and
• if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily.  

Item [5] - Schedule 2, subclause 572.223(1)

This item substitutes subclause 572.223(1) in Part 572 of Schedule 2 to the Principal Regulations.

Clause 572.223 is a time of decision criterion for the grant of a Subclass 572 (Vocational Education and Training Sector) visa.  Currently, subclause 572.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 572.223(2). 

Broadly, subclause 572.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 572.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

*         the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

*         the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The effect of this amendment is that in order to satisfy the criterion in clause 572.223, the applicant must be both a genuine student and a genuine temporary entrant. 

Item [6] - Schedule 2, before paragraph 572.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 572.326 in Part 572 of Schedule 2 to the Principal Regulations. 

Clause 572.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 572 (Vocational Education and Training Sector) visa.  Clause 572.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 572 visa. 

New paragraph 572.326(aa) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

*         the applicant's circumstances; and

*         the applicant's immigration history; and

*         if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

*         any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily. 

Item [7] - Schedule 2, subclause 573.223(1)

This item substitutes subclause 573.223(1) in Part 573 of Schedule 2 to the Principal Regulations.

Clause 573.223 is a time of decision criterion for the grant of a Subclass 573 (Higher Education Sector) visa.  Currently, subclause 573.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 573.223(2). 

Broadly, subclause 573.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 573.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

*         the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

*         the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 573.223(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 573.223, the applicant must be both a genuine student and a genuine temporary entrant.  

Item [8] - Schedule 2, before paragraph 573.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 573.326 in Part 573 of Schedule 2 to the Principal Regulations. 

Clause 573.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 573 (Higher Education Sector) visa.  Clause 573.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 573 visa. 

New paragraph 573.326(aa) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

*         the applicant's circumstances; and

*         the applicant's immigration history; and

*         if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

*         any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay. 

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily.

Item [9] - Schedule 2, subclause 574.223(1)

This item substitute subclause 574.223(1) in Part 574 of Schedule 2 to the Principal Regulations.

Clause 574.223 is a time of decision criterion for the grant of a Subclass 574 (Postgraduate Research Sector) visa.  Currently, subclause 574.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 574.223(2). 

Broadly, subclause 574.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 574.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

*         the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

*         the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 574.223(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 574.223, the applicant must be both a genuine student and a genuine temporary entrant.  

Item [10] - Schedule 2, before paragraph 574.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 574.326 in Part 574 of Schedule 2 to the Principal Regulations. 

Clause 574.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 574 (Postgraduate Research Sector) visa.  Clause 574.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 574 visa. 

New paragraph 574.326(aa) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

*         the applicant's circumstances; and

*         the applicant's immigration history; and

*         if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

*         any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily. 

 Item [11] - Schedule 2, subclause 575.223(1)

This item substitutes subclause 575.223(1) in Part 575 of Schedule 2 to the Principal Regulations.

Clause 575.223 is a time of decision criterion for the grant of a Subclass 575 (Non-Award Sector) visa.  Currently, subclause 575.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 575.223(2). 

Broadly, subclause 575.223(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 575.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

• the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

• the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 575.223(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 575.223, the applicant must be both a genuine student and a genuine temporary entrant. 

Item [12] - Schedule 2, before paragraph 575.326(a)

This item inserts new paragraph (aa) before paragraph (a) in clause 575.326 in Part 575 of Schedule 2 to the Principal Regulations. 

Clause 575.326 is a time of decision criterion for applicants seeking to satisfy the secondary criteria for the grant of a Subclass 575 (Non-Award Sector) visa.  Clause 575.326 sets out certain requirements that must be met by applicants seeking to satisfy the secondary criteria for the grant of a Subclass 575 visa. 

New paragraph 575.326(aa) requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

• the applicant's circumstances; and
• the applicant's immigration history; and
• if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay. 

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in clause 575.326 to be a genuine student. 

Item [13] - Schedule 2, subclause 576.222(1)

This item substitutes subclause 576.222(1) in Part 576 of Schedule 2 to the Principal Regulations.

Clause 576.222 is a time of decision criterion for the grant of a Subclass 576 (AusAID or Defence Sector) visa.  Currently, subclause 576.222(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements in subclause 576.222(2). 

Broadly, subclause 576.222(2) sets outs requirements relating to the applicant's English language proficiency and financial capacity, as well as requirements relating to the applicant's genuineness to study in Australia.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student visa, that is, a temporary stay. 

New subclause 576.222(2) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because:

• the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

-        any other relevant matter; and

• the applicant meets the requirements of (existing) subclause (2).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia, study and then return home.

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 576.222(2) to be a genuine student. 

The effect of this amendment is that in order to satisfy the criterion in clause 576.222, the applicant must be both a genuine student and a genuine temporary entrant.   

Item [14] - Schedule 2, after clause 576.325

This item inserts new clause 576.325A in Part 576 of Schedule 2 to the Principal Regulations.

This amendment inserts a new criterion in the secondary criteria for the grant of a Subclass 576 (AusAID or Defence Sector) visa.

New clause 576.325A requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

*         the applicant's circumstances; and

*         the applicant's immigration history; and

*         if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

*         any other relevant matter.

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends to come to Australia and then return home, following the completion of the primary applicant's studies. 

Further, if the applicant is a minor, this amendment requires the intentions of a parent, legal guardian or spouse of the applicant to be taken into account when assessing whether the applicant intends genuinely to stay in Australia temporarily.

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily.

Item [15] - Schedule 2, clause 580.111, after definition of first 12 months

This item inserts a new defined term "first 18 months" in clause 580.111 in Part 580 of Schedule 2 to the Principal Regulations, after the definition of "first 12 months". 

The new definition provides that:

   first 18 months, for an applicant, means the period that:

                (a)    begins:

                          (i)    if the application is made outside Australia -- on the day of the applicant's expected arrival in Australia; or

                         (ii)    if the application is made in Australia -- on the day that the student visa is expected to be granted to the applicant; and

               (b)    ends on the earlier of the following:

                          (i)    the day 18 months after the beginning of the period;

                         (ii)    the last day of the applicant's proposed stay in Australia.

 

The purpose of this amendment is to provide for a definition of "first 18 months" for the purposes of Part 580 of Schedule 2 to the Principal Regulations.

The amendment made by this item is consequential to the amendment made by item 19.

Item [16] - Schedule 2, clause 580.111, definition of first 36 months

This item omits the definition of "first 36 months" in clause 580.111 in Part 580 of Schedule 2 to the Principal Regulations.

The amendment made by this item is consequential to the amendment made by item 18.

Item [17] - Schedule 2, clause 580.112, definition of funds from an acceptable source, paragraph (a)

This item omits the words "6 months" from paragraph (a) of the definition of "funds from an acceptable source" in clause 580.112 in Part 580 of Schedule 2 to the Principal Regulations and inserts the words "3 months".

The term "funds from an acceptable source" is defined for the purpose of subclause 580.226(3).  Currently, paragraph (a) of that definition provides that a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application is an acceptable source of funds.

The effect of the amendment made by this item is that, if the nominating student was subject to Assessment Level 4 at the time his or her visa was granted, the applicant seeking to satisfy the criteria for the grant of a Subclass 580 (Student Guardian) visa, who are presenting evidence of funds as a money deposit, must have held the funds for at least the 3 months immediately before the date of the application.  This is a reduction from the current 6 months.

Item [18] - Schedule 2, subclause 580.226(1)

This item substitutes subclause 580.226(1) in Part 580 of Schedule 2 to the Principal Regulations.

Clause 580.226 is a time of decision criterion for the grant of a Subclass 580 (Student Guardian) visa.  Currently, clause 580.226 requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student guardian because the applicant meets the requirements of subclause (1A) or (1B). 

Broadly, subclauses 580.226(1A) and (1B) set out requirements relating to the applicant's requirements relating to the applicant's financial capacity, as well as requirements relating to the applicant's genuineness as a student guardian, depending on whether or not the applicant is a person designated under regulation 2.07AO.  However, the current formulation does not provide a clear statutory basis for assessing an applicant's genuineness about staying in Australia for the type of stay permitted on a Student Guardian visa, that is, a temporary stay. 

New subclause 580.226(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student guardian because:

• the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

-        the applicant's circumstances; and

-        the applicant's immigration history; and

-        any other relevant matter; and

• the applicant meets the requirements of (existing) subclause (1A) or (1B).

The amendment requires the Minister to consider the circumstances of the applicant to ascertain whether the applicant genuinely intends is to come to Australia, be a student guardian and then return home, following the completion of the nominating student's studies. 

Other relevant matters might include information that may mean the applicant has little incentive to return at the end of their proposed stay, or information that may mean the applicant has significant incentive to return at the end of their proposed stay.

The purpose of this amendment is to ensure that there is a clear statutory basis for the Minister to assess an applicant's genuineness to stay in Australia temporarily, in addition to the applicant still having to meet the existing requirements in subclause 580.226(1A) or (1B) to be a genuine student guardian.

Item [19] - Schedule 2, paragraph 580.226(4)(a)

This item omits the words "first 24 months" in paragraph 580.226(4)(a) in Part 580 of Schedule 2 to the Principal Regulations and inserts the words "first 18 months".

Currently, if the nominating student (for a Subclass 580 (Student Guardian) visa applicant) was, at the time his or her visa was granted, subject to Assessment Level 3, paragraph 580.226(4)(a) requires the applicant to provide evidence that they have funds from an acceptable source that are sufficient to meet living costs for the first 24 months.  Clause 580.111 currently provides a definition for the term "first 24 months". 

The effect of this amendment is that, if the nominating student was subject to Assessment Level 3 at the time his or her visa was granted, the applicant for the Subclass 580 (Student Guardian) visa would be required to provide evidence that they have funds from an acceptable source that are sufficient to meet living costs for the first 18 months, which is a reduction from the current 24 months. 

The amendment made by item 16 inserts a new definition of "first 18 months" for the purposes of Part 580 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reduce the period of time that an applicant must demonstrate that they have access to sufficient funds for living expenses. 

Item [20] - Schedule 2, paragraph 580.226(3)(a)

This item omits the words "first 36 months" in paragraph 580.226(3)(a) in Part 580 of Schedule 2 to the Regulations and inserts the words "first 24 months".

Currently, if the nominating student for a Subclass 580 (Student Guardian) visa was, at the time his or her visa was granted, subject to Assessment Level 4, paragraph 580.226(3)(a) requires the applicant to provide evidence that they have funds from an acceptable source that are sufficient to meet living costs for the first 36 months.

The effect of this amendment is that, if the nominating student was subject to Assessment Level 4 at the time his or her visa was granted, the applicant for the Subclass 580 (Student Guardian) visa would only be required provide evidence that they have funds from an acceptable source that are sufficient to meet living costs for the first 24 months, which is a reduction from the current 36 months.  Clause 580.111 provides a definition for the term "first 24 months". 

The purpose of this amendment is to reduce the period of time that an applicant must demonstrate that they have access to sufficient funds for living expenses. 

Item [21] - Schedule 5A, clause 5A101, after definition of first 12 months

This item inserts the new defined term "first 18 months" into clause 5A101 in Part 1 of Schedule 5A of the Principal Regulations.  The new definition provides that:

   first 18 months, for an applicant, means the period that:

                (a)    begins:

                          (i)    if the application is made outside Australia -- on the day of the applicant's expected arrival in Australia; or

                         (ii)    if the application is made in Australia -- on the day that the student visa is expected to be granted to the applicant; and

               (b)    ends on the earlier of the following:

                          (i)    the day 18 months after the beginning of the period;

                         (ii)    the last day of the applicant's proposed stay in Australia.

 

The purpose of this new term is to define the meaning of the term "first 18 months" for the purposes of Schedule 5A to the Principal Regulations.

Item [22] - Schedule 5A, clause 5A101, definition of first 36 months

This item omits the definition of "first 36 months" in clause 5A101 in Part 1 of Schedule 5A to the Principal Regulations.

The amendment made by this item is consequential to the amendments made by items 25, 26, 30, 31, 35, 36, 40, 41, 46 and 47.

Item [23] - Schedule 5A, clause 5A201

This item substitutes existing clause 5A201 in Part 2 of Schedule 5A to the Principal Regulations. New clause 5A201 provides that:

The applicant must have a level of English language proficiency that satisfies his or her proposed education provider.

Existing clause 5A201 provides that applicants for a Subclass 570 (Independent ELICOS Sector) visa, who are subject to Assessment Level 5, must give evidence that they have achieved in an IELTS test that was taken less than two years before the date of their application, an Overall Band Score of at least 7.0.

The amendment made by this item removes this requirement and replaces it with a requirement to give evidence that the applicant has a level of English language proficiency that satisfies the applicant's proposed education provider.

The purpose of this amendment is to align the English proficiency requirement for Assessment Level 5 with the English proficiency requirement for Assessment Level 1 to Assessment Level 3.

Item [24] - Schedule 5A, clause 5A204

This item substitutes existing clause 5A204 in Part 2 of Schedule 5A to the Principal Regulations. New clause 5A204 provides that:

The applicant must have a level of English language proficiency that satisfies his or her proposed education provider.

Existing clause 5A204 provides that an applicant must provide evidence that one of a number of specified circumstances apply to them in order to meet the English Language Proficiency requirement.  It is only necessary for the student to provide evidence that one of these applies to them.

The effect of the amendment made by this item is that applicants for a Subclass 570 (Independent ELICOS Sector), who are subject to Assessment Level 4, are now only required to give evidence that they have a level of English language proficiency that satisfies the applicant's proposed education provider.

The purpose of this amendment is to align the English proficiency requirement for Assessment Level 4 with the English proficiency requirement for Assessment Level 1 to Assessment Level 3.

Item [25] - Schedule 5A, paragraph 5A205(1)(a)

This item omits the words "first 36 months" in paragraph 5A205(1)(a) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

Existing paragraph 5A205(1)(a) provides that an applicant for a Subclass 570 (Independent ELICOS Sector) visa, who is subject to Assessment Level 4,  must give evidence that they have sufficient funds from an acceptable source to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that these applicants would be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

The purpose of this amendment is to reduce the period of time that an applicant must demonstrate that they have access to sufficient funds for living and study expenses.  
Item [26] - Schedule 5A, paragraph 5A205(1)(aa)

This item omits the words "first 36 months" in paragraph 5A205(1)(aa) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

The amendments made by this item are consequential to the amendment made by item 25.

Item [27] - Schedule 5A, subclause 5A205(2) definition of funds from an acceptable source, paragraph (a)

This item omits the words "6 months" from paragraph (a) of the definition of "funds from an acceptable source" in subclause 5A205(2) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants for a Subclass 570 (Independent ELICOS Sector), who are subject to Assessment Level 4 and who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [28] - Schedule 5A, paragraph 5A208(1)(a)

This item omits the words "first 24 months" in paragraph 5A208(1)(a) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5A208(1)(a) provides that an applicant for a  Subclass 570 (Independent ELICOS Sector) visa, who is subject to Assessment Level 3, must give evidence that they have funds from an acceptable source to meet their expenses for the first 24 months.

The effect of the amendment made by this item is that applicants for a Subclass 570 (Independent ELICOS Sector) visa, who are subject to Assessment Level 3, would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

Item [29] - Schedule 5A, paragraph 5A208(1)(aa)

This item omits the words "first 24 months" from paragraph 5A208(1)(aa) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendment made by item 28.

Item [30] - Schedule 5A, paragraph 5A305(1)(a)

This item omits the words "first 36 months" from paragraph 5A305(1)(a) in Part 2 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

Existing 5A305(1)(a) provides that an applicant must give evidence that they have funds from an acceptable source that is sufficient to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that applicants for a Subclass 571 (Schools Sector) visa, who are subject to Assessment Level 4, would now be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

Item [31] - Schedule 5A, paragraph 5A305(1)(b)

This item omits the words "first 36 months" in paragraph 5A305(1)(b) in Part 3 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

The amendments made by this item are consequential to the amendment made by item 30.

Item [32] - Schedule 5A, subclause 5A305(2), definition of funds from an acceptable source, paragraph (aa)

This item omits the words "6 months" from paragraph (aa) of the definition of "funds from an acceptable source" in subclause 5A305(2) in Part 3 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants for a Subclass 571 (Schools Sector) visa, who are subject to Assessment Level 4, who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [33] - Schedule 5A, paragraph 5A308(1)(a)

This item omits the words "first 24 months" from paragraph 5A308(1)(a) in Part 3 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5A308(1)(a) provides that an applicant must give evidence that he or she has access to funds from an acceptable source that are sufficient to meet the applicants expenses for the first 24 months.

The effect of the amendment made by this item is that applicants for a Subclass 571(Schools Sector) visa, who are subject to Assessment Level 3, would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

Item [34] - Schedule 5A, paragraph 5A308(1)(aa)

This item omits the words "first 24 months" from paragraph 5A308(1)(aa) in Part 3 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendment made by item 33.

Item [35] - Schedule 5A, paragraph 5A405(1)(a)

This item omits the words "first 36 months" from paragraph 5A405(1)(a) in Part 4 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

Existing 5A405(1)(a) provides that an applicant must give evidence that they have funds from an acceptable source that are sufficient to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that applicants for a Subclass 572 (Vocational Education and Training Sector) visa, who are subject to Assessment Level 4, would now be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

Item [36] - Schedule 5A, paragraph 5A405(1)(aa)

This item omits the words "first 36 months" from paragraph 5A405(1)(aa) in Part 4 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

The amendments made by this item are consequential to the amendment made by item 35.

Item [37] - Schedule 5A, subclause 5A405(2), definition of funds from an acceptable source, paragraph (aa)

This item omits the words "6 months" from paragraph (aa) of the definition of "funds from an acceptable source" in subclause 5A405(2) in Part 4 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants for a Subclass 572 (Vocational Education and Training Sector) visa, who are subject to Assessment Level 4 and who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [38] - Schedule 5A, paragraph 5A408(1)(a)

This item omits the words "first 24 months" from paragraph 5A408(1)(a) in Part 4 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5A408(1)(a) provides that an applicant must give evidence that he or she has access to funds from an acceptable source that are sufficient to meet the applicants expenses for the first 24 months.

The effect of the amendment made by this item is that applicants for a Subclass 572 (Vocational Education and Training Sector) visa, who are subject to Assessment Level 3, would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

Item [39] - Schedule 5A, paragraph 5A408(1)(aa)

This item omits the words "first 24 months" from paragraph 5A408(1)(aa) in Part 4 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendments made by item 38.

Item [40] - Schedule 5A, paragraph 5A505(1)(a)

This item omits the words "first 36 months" from paragraph 5A505(1)(a) in Part 5 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

Existing 5A505(1)(a) provides that an applicant must give evidence that they have funds from an acceptable source that is sufficient to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that applicants for a Subclass 573 (Higher Education Sector) visa, who are subject to Assessment Level 4, would now be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

Item [41] - Schedule 5A, paragraph 5A505(1)(aa)

This item omits the words "first 36 months" from paragraph 5A505(1)(aa) in Part 5 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

The amendments made by this item are consequential to the amendment made by item 40.

Item [42] - Schedule 5A, subclause 5A505(2), definition of funds from an acceptable source, paragraph (aa)

This item omits the words "6 months" from paragraph (aa) of the definition of "funds from an acceptable source" in subclause 5A505(2) in Part 5 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application

The effect of the amendment made by this item is that applicants for a Subclass 573 (Higher Education Sector) visa, who are subject to Assessment Level 4, who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [43] - Schedule 5A, paragraph 5A508(1)(a)

This item omits the words "first 24 months" from paragraph 5A508(1)(a) in Part 5 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5A308(1)(a) provides that an applicant must give evidence that he or she has access to funds from an acceptable source that are sufficient to meet the applicants expenses for the first 24 months.

The effect of the amendment made by this item is that applicants for a Subclass 573 (Higher Education Sector) visa, who are classed as Assessment Level 3, would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

Item [44] - Schedule 5A, paragraph 5A508(1)(aa)

This item omits the words "first 24 months" from paragraph 5A508(1)(aa) in Part 5 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendment made by item 43.

Item [45] - Schedule 5A, subclause 5A605(2), definition of funds from an acceptable source, paragraph (aa)

This item omits the words "6 months" from paragraph (aa) of the definition of funds from an acceptable source in subclause 5A605(2) in Part 6 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of funds from an acceptable source provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants for a Subclass 574 (Postgraduate Research Sector) visa, who are classed as Assessment Level 4, who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [46] - Schedule 5A, paragraph 5A705(1)(a)

This item omits the words "first 36 months" from paragraph 5A705(1)(a) in Part 7 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

Existing 5A705(1)(a) provides that an applicant must give evidence that they have funds from an acceptable source that is sufficient to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that applicants for a Subclass 575 (Non-Award Sector) visa, who are subject to Assessment Level 4, would now be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

Item [47] - Schedule 5A, paragraph 5A705(1)(aa)

This item omits the words "first 36 months" from paragraph 5A705(1)(aa) in Part 7 of Schedule 5A to the Principal Regulations and inserts the words "first 24 months".

The amendments made by this item are consequential to the amendment made by item 46.

Item [48] - Schedule 5A, subclause 5A705(2), definition of funds from an acceptable source, paragraph (a)

This item omits the words "6 months" from paragraph (a) of the definition of funds from an acceptable source in subclause 5A705(2) in Part 7 of Schedule 5A to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application

The effect of the amendment made by this item is that applicants for a Subclass 575 (Non-Award Sector) visa, who are Subject to Assessment Level 4, who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

Item [49] - Schedule 5A, paragraph 5A708(1)(a)

This item omits the words "first 24 months" from paragraph 5A708(1)(a) in Part 7 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5A708(1)(a) provides that an applicant must give evidence that he or she has access to funds from an acceptable source that are sufficient to meet the applicants expenses for the first 24 months.

The effect of the amendment made by this item is that applicants for a Subclass 575 (Non-Award Sector) visa, who are subject to Assessment Level 3, would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

Item [50] - Schedule 5A, paragraph 5A708 (1) (aa)

This item omits the words "first 24 months" from paragraph 5A708(1)(aa) in Part 7 of Schedule 5A to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendment made by item 25.

Item [51] - Schedule 5B, clause 5B101, after definition of first 12 months

This item inserts a new defined term "first 18 months" into clause 5B101 in Part 1 of Schedule 5B to the Principal Regulations.  The new definition provides that:

first 18 months, for an applicant, means the period that:

                (a)    begins:

                          (i)    if the application is made outside Australia -- on the day of the applicant's expected arrival in Australia; or

                         (ii)    if the application is made in Australia -- on the day that the student visa is expected to be granted to the applicant; and

               (b)    ends on the earlier of the following:

                          (i)    the day 18 months after the beginning of the period;

                         (ii)    the last day of the applicant's proposed stay in Australia.

 

The purpose of this new term is to define the meaning of the term "first 18 months" for the purposes of Schedule 5B to the Principal Regulations.

As Schedule 5B only applies to secondary applicants, the purpose of the amendments to Schedule 5B is to align the requirements for secondary applicants with the corresponding requirements in Schedule 5A for primary applicants.

Item [52] - Schedule 5B, clause 5B101, definition of first 36 months

This item omits the definition of "first 36 months" in clause 5A101 in Part 1 of Schedule 5A to the Principal Regulations.

The amendments to this item are consequential to the amendments made to Schedule 5A to the Principal Regulations.

Item [53] - Schedule 5B, paragraph 5B201(2)(a)

This item omits the words "first 36 months" in paragraph 5B201(2)(a) in Part 2 of Schedule 5B to the Principal Regulations and inserts the words "first 24 months".

Existing paragraph 5B201(2)(a) provides that an applicant must give evidence that they have sufficient funds from an acceptable source to meet their expenses for the first 36 months.

The effect of the amendment made by this item is that these applicants would be required to provide evidence that they have access to funds from an acceptable source for the first 24 months, which is a reduction from the current 36 months.

As Schedule 5B only applies to secondary applicants, the purpose of the amendments to Schedule 5B is to align the requirements for secondary applicants with the corresponding requirements in Schedule 5A for primary applicants.

Item [54] - Schedule 5B, subclause 5B201 (3), definition of funds from an acceptable source, paragraph (a)

This item omits the words "6 months" in paragraph (a) of the definition of funds from an acceptable source in subclause 5B201(3) in Part 2 of Schedule 5B to the Principal Regulations and inserts the words "3 months".

The existing definition of "funds from an acceptable source" provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

As Schedule 5B only applies to secondary applicants, the purpose of the amendments to Schedule 5B is to align the requirements for secondary applicants with the corresponding requirements in Schedule 5A for primary applicants.

Item [55] - Schedule 5B, subclause 5B202 (3), definition of funds from an acceptable source, paragraph (a)

This item omits the words "6 months" in paragraph (a) of the definition of funds from an acceptable source in subclause 5B202(3) in Part 2 of Schedule 5B to the Principal Regulations and inserts the words "3 months".

The existing definition of funds from an acceptable source provides that these funds can include a money deposit that an acceptable individual has held for at least the last six months immediately before the date of application.

The effect of the amendment made by this item is that applicants who are presenting evidence of funds as a cash deposit, must have held the funds for at least the three months immediately before the date of the application.  This is a reduction from the current six months.

As Schedule 5B only applies to secondary applicants, the purpose of the amendments to Schedule 5B is to align the requirements for secondary applicants with the corresponding requirements in Schedule 5A for primary applicants.

Item [56] - Schedule 5B, paragraph 5B301 (2) (a)

This item omits the words "first 24 months" in paragraph 5B301(2)(a) in Part 3 of Schedule 5B to the Principal Regulations and inserts the words "first 18 months".

Existing paragraph 5B301(2)(a) provides that the applicant must give evidence that they have funds from an acceptable source to meet their expenses for the first 24 months.

The effect of the amendment made by this item is that applicants would now be required to provide evidence that they have access to funds from an acceptable source for the first 18 months, which is a reduction from the current 24 months.

As Schedule 5B only applies to secondary applicants, the purpose of the amendments to Schedule 5B is to align the requirements for secondary applicants with the corresponding requirements in Schedule 5A for primary applicants.

Item [57] - Schedule 5B, paragraph 5B301(2)(d)

This item omits the words "first 24 months" in paragraph 5B301(2)(d) in Part 3 of Schedule 5B to the Principal Regulations and inserts the words "first 18 months".

The amendments made by this item are consequential to the amendment made by item 25.

 

 

Schedule 3 - Amendments of Migration Regulations 1994  relating to public interest criteria 4005, 4006A and 4007

Item [1] - Schedule 4, subclause 4005(3)

This item substitutes existing subclause 4005(3) of Schedule 4 to the Migration Regulations 1994 (the Principal Regulations).  New subclause 4005(3) provides that:

If:

 

(a)    the applicant applies for a temporary visa; and

(b)   the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph 4005(2)(b)(ii);

the reference in sub-subparagraph 4005(1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for new subclause 4005(3).

Sub-subparagraph 4005(1)(c)(ii)(A) relates to the consideration of the potential cost to the Australian community in the areas of health care and community services. 

The effect of new subclause 4005(3) is that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4005(2)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are not specified by the Minister in an instrument in writing made for new subclause 4005(3);

then a Medical Officer of the Commonwealth must consider the costs of these services when making an assessment about whether the applicant meets 4005(1)(c)(ii)(A).

Conversely, subclause 4005(3) will also have the effect that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4005(2)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are specified by the Minister in an instrument in writing made for new subclause 4005(3);

then a Medical Officer of the Commonwealth must not consider the costs of these services when making an assessment about whether the applicant meets 4005(1)(c)(ii)(A).

The purpose of new subclause 4005(3) is to address an unintended consequence of existing subclause 4005(3) that commenced on 1 July 2011 as part of the Migration Legislation Amendment Regulations 2011 (No. 1).  The unintended consequence is that, because of existing subclause 4005(3), a MOC is not able to consider the potential cost for the provision of health care and community services that may be used while in Australia but for which the applicant is not technically eligible.

Under existing subclause 4005(3), MOCs are not required to assess an applicant against the potential cost for the provision of health care and community services if the applicant:

• would not be eligible for the provision of the health care or community services; and
• the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
• the subclass is not specified by the Minister in an instrument in writing made under subparagraph 4005(2)(b)(ii).  The only visa subclasses that have been specified in the instrument are provisional visas, for example, temporary visas which may lead to permanent visas.

However, it is possible that certain temporary visa applicants with diseases or medical conditions could access health care or community services even if they are not eligible for them.  This might occur, for example, because a hospital will not refuse to provide medical treatment to people who require it.  As these cases would result in a cost to the Australian community, it is reasonable that these costs should be taken into account by a MOC when assessing the applicant against the health criteria. 

There are, however, certain health care or community services that cannot be accessed by temporary visa applicants such as social security payments.  The effect of new subclause 4005(3) is that a MOC is not required to assess the relevant temporary visa applicant (see new paragraphs 4005(3)(a) and (b)) against the specified health care and community services.  The specified health care and community services include those which a temporary visa applicant is unlikely to be able to access.

Item [2] - Schedule 4, subclause 4006A(1B)

This item substitutes existing subclause 4006A(1B) of Schedule 4 to the Principal Regulations.  New subclause 4006A(1B) provides that:

If:

(a)    the applicant applies for a temporary visa; and

(b)   the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph 4006A(1A)(b)(ii);

the reference in sub-subparagraph 4006A(1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for new subclause 4006A(1B).

Sub-subparagraph 4006A(1)(c)(ii)(A) relates to the consideration of the potential cost to the Australian community in the areas of health care and community services.

The effect of new subclause 4006A(1B) is that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4006A(1A)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are not specified by the Minister in an instrument in writing made for new subclause 4006A(1B);

then a Medical Officer of the Commonwealth must consider the costs of these services when making an assessment about whether the applicant meets 4006A(1)(c)(ii)(A).

Conversely, subclause 4006A(1B) will also have the effect that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4006A(1A)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are specified by the Minister in an instrument in writing made for new subclause 4006A(1B);

then a Medical Officer of the Commonwealth must not consider the costs of these services when making an assessment about whether the applicant meets 4006A(1)(c)(ii)(A).

The purpose of new subclause 4006A(1B) is to address an unintended consequence of existing subclause 4006A(1B) that commenced on 1 July 2011 as part of the Migration Legislation Amendment Regulations 2011 (No. 1).  The unintended consequence is that, because of existing subclause 4006A(1B), a MOC is not able to consider the potential cost for the provision of health care or community services that may be used while in Australia but for which the applicant is not technically eligible.

Under existing subclause 4006A(1B), MOCs are not required to assess an applicant against the potential cost for the provision of health care or community services if the applicant:

• would not be eligible for the provision of the health care or community services; and
• the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
• the subclass is not specified by the Minister in an instrument in writing made under subparagraph 4006A(1A)(b)(ii).  The only visa subclasses that have been specified in the instrument are provisional visas, for example, temporary visas which may lead to permanent visas.

However, it is possible that certain temporary visa applicants with diseases or medical conditions could access Australian health care or community services even if they are not eligible for them.  This might occur, for example, because a hospital will not refuse to provide medical treatment to people who require it.  As these cases would result in a cost to the Australian community, it is reasonable that these costs should be taken into account by a MOC when assessing the applicant against the health criteria.

Further, there are certain health care or community services that cannot be accessed by temporary visa applicants.  The effect of new subclause 4006A(1B) is that a MOC is not required to assess the relevant temporary visa applicant (see new paragraphs 4006A(1B)(a) and (b)) against those care or services.  Such care and services are intended to be specified by the Minister in an instrument in writing made for new subclause 4006A(1B).

Item [3] - Schedule 4, subclause 4007(1B)

This item substitutes existing subclause 4007(1B) of Schedule 4 to the Principal Regulations.  New subclause 4007(1B) provides that:

If:

(a)    the applicant applies for a temporary visa; and

(b)   the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph 4007(1A)(b)(ii);

the reference in sub-subparagraph 4007(1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for new subclause 4007(1B).

Sub-subparagraph 4007(1)(c)(ii)(A) relates to the consideration of the potential cost to the Australian community in the areas of health care and community services.

The effect of new subclause 4007(1B) is that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4007(1A)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are not specified by the Minister in an instrument in writing made for new subclause 4007(1B);

then a Medical Officer of the Commonwealth must consider the costs of these services when making an assessment about whether the applicant meets 4007(1)(c)(ii)(A).

Conversely, subclause 4007(1B) will also have the effect that:

• if the applicant has applied for a temporary visa not specified in the instrument made for subparagraph 4007(1A)(b)(ii); and
• the applicant has a health condition or disease and would therefore likely require health care or community services that are specified by the Minister in an instrument in writing made for new subclause 4007(1B);

then a Medical Officer of the Commonwealth must not consider the costs of these services when making an assessment about whether the applicant meets 4007(1)(c)(ii)(A).

The purpose of new subclause 4007(1B) is to address an unintended consequence of existing subclause 4006A(1B) that commenced on 1 July 2011 as part of the Migration Legislation Amendment Regulations 2011 (No. 1).  The unintended consequence is that, because of existing subclause 4007(1B), a MOC is not able to consider the potential cost for the provision of health care or community services that may be used while in Australia but for which the applicant is not technically eligible.

Under existing subclause 4007(1B), MOCs are not required to assess an applicant against the potential cost for the provision of health care or community services if the applicant:

• would not be eligible for the provision of the health care or community services; and
• the ineligibility would be due to the temporary visa for which the applicant is applying being of a particular subclass; and
• the subclass is not specified by the Minister in an instrument in writing made under subparagraph 4007(1A)(b)(ii).  The only visa subclasses that have been specified in the instrument are provisional visas, for example, temporary visas which may lead to permanent visas.

However, it is possible that certain temporary visa applicants with diseases or medical conditions could access Australian health care or community services even if they are not eligible for them.  This might occur, for example, because a hospital will not refuse to provide medical treatment to people who require it.  As these cases would result in a cost to the Australian community, it is reasonable that these costs should be taken into account by a MOC when assessing the applicant against the health criteria. 

Further, there are certain health care or community services that cannot be accessed by temporary visa applicants.  The effect of new subclause 4007(1B) is that a MOC is not required to assess the relevant temporary visa applicant (see new paragraphs 4007(1B)(a) and (b)) against those care or services.  Such care and services are intended to be specified by the Minister in an instrument in writing made for new subclause 4007(1B).

 

 

Schedule 4 - Amendments of Migration Regulations 1994 relating to invitations to give additional information or comments

Item [1] - Regulation 2.15, heading

This item substitutes the current heading of regulation 2.15 of the Migration Regulations 1994 (the Principal Regulations).  The new heading is "Response to invitation to give additional information or comments - prescribed periods".  

The purpose of the amendment is to ensure that the language in the heading of regulation 2.15 matches that used in subsection 58(2) of the Act.

Item [2] - Subregulation 2.15(1)

This item omits "make comments or give further information" from subregulation 2.15(1) and inserts in its place "give additional information or comments".  

The purpose of the amendment is to ensure that the language in subregulation 2.15(1) matches that used in subsection 58(2) of the Act.     

Item [3] - Subparagraph 2.15(1)(b)(i) and (ii)

This item substitutes current subparagraphs 2.15(1)(b)(i) and (ii) and inserts new subparagraphs 2.15(1)(b)(i), (ia) and (ii).

When processing a visa application, the Minister or the Minister's delegate may invite the visa applicant to provide further information under section 56 of the Act, and must invite the visa applicant to comment on relevant information under section 57 of the Act.

Regulation 2.15 of the Principal Regulations prescribes, for the purposes of subsection 58(2) of the Act, the period for giving additional information or comments in response to an invitation. 

For an invitation given at an interview to a visa applicant who is in Australia and is not in immigration detention, the prescribed period for responding to that invitation is 7 days after the interview.  Currently, however, an invitation given by telephone is not regarded as an invitation given at an interview.  Therefore an invitation given by telephone falls within the meaning of "any other case" in sub-subparagraph 2.15(1)(b)(ii)(C) of the Principal Regulations and the timeframe for responding to such an invitation is 28 days after the visa applicant is notified of the invitation.  

The purpose of this item is to provide that, where a visa applicant is given an invitation during a telephone conversation to provide further information or comment on relevant information, that applicant would have 7 days after the invitation is given in which to provide that information or comment.  This recognises the fact that, like an invitation given at an interview, an invitation given during a telephone conversation allows the decision-maker to have immediate interaction with the visa applicant, in contrast to invitations given in writing.  In other words, this item achieves consistency by aligning the timeframe for response in situations where an invitation is given orally, regardless of whether that invitation is given at an interview or during a telephone conversation.

By changing the response timeframe for an invitation given during a telephone conversation from 28 days to 7 days, this item reduces delays in visa processing and allow the decision-maker to deal with the visa application more efficiently in situations where it is reasonable, sufficient and appropriate to extend an invitation by telephone, while still affording the visa applicant procedural fairness.  In this way, it would also provide greater certainty to the visa applicant by increasing the likelihood of timely decision-making. 

However, where the decision-maker forms the view that a telephone invitation and the consequent shorter response timeframe is not appropriate (for example, due to the complex nature of the relevant information being put to the visa applicant) and would otherwise disadvantage the visa applicant, the policy intention is that the invitation would be given to the visa applicant in writing rather than orally during a telephone conversation.  In that case, the visa applicant would still have the opportunity to fully consider the substance of the invitation and have 28 days in which to respond.         

Further, this item recognises that, like an invitation provided at an interview, an invitation given during a telephone conversation allows the decision-maker to have immediate interaction with the visa applicant, in contrast to invitations given in writing.  Accordingly, this item aligns the timeframe for responding to a telephone invitation with that for responding to an invitation given at an interview.