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MIGRATION AMENDMENT REGULATION 2013 (NO. 2) (SLI NO 75 OF 2013)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2013 No. 75

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulation 2013 (No. 2)

 

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 of the Act in Attachment A.

 

The purpose of the Regulation is to amend the Migration Regulations 1994 ('the Regulations') to introduce a new Community Proposal Pilot program ('the Pilot program') within the current Refugee and Humanitarian (Class XB) visa ('Class XB visa) framework.  The Class XB visa is intended for people outside Australia who are in need of humanitarian assistance.

 

The Pilot program will be trialled by the Department of Immigration and Citizenship ('the Department') to provide a mechanism for community organisations, approved by the Department, to identify and propose people, who are outside Australia and in humanitarian need, for entry to Australia under the Humanitarian Program.  These 'Approved Proposing Organisations' will provide settlement support to the people they had proposed after their arrival in Australia, working either independently or with the assistance of other community organisations.

 

The purpose of the Pilot program is to provide an additional avenue for the resettlement of humanitarian entrants with links to Australia, and to enable community organisations to play an enhanced role in contributing towards the costs of humanitarian settlement and in providing practical support to assist humanitarian entrants.  The Pilot program will be allocated up to 500 of the 20,000 visa places available within the Humanitarian Program.

 

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the Legislative Instrument is compatible with human rights because it does not engage Australia's human rights obligations.  A copy of the Statement is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

 

The Office of Best Practice Regulation ('the OBPR') has been consulted and considers that the changes do not have a regulatory impact on business or the not-for-profit sector and no further analysis (in the form of a Regulation Impact Statement) is required.  The OBPR consultation reference is 2012/14375.

 

The Department has also consulted humanitarian organisations, community organisations, state, territory and local governments and Commonwealth Government agencies.  Additionally, the Department consulted with Citizenship and Immigration Canada, which administers the Canadian Private Sponsorship of Refugees Program, a program which has been in place since 1978.

 

On 20 June 2012 a discussion paper was released seeking the community's views on the feasibility of a pilot which would enable organisations to propose a person, in a humanitarian situation, for entry to Australia under the Humanitarian Program. More than 60 responses were received from key humanitarian organisations, faith-based groups, community organisations, Humanitarian Settlement Services ('HSS') providers, Settlement Grants Program providers, and state and local governments.  On 14 and 17 August 2012, the Department also held two formal consultation meetings with representatives from community and faith-based organisations.  Additionally, the Department has held more than 30 meetings and teleconferences since August 2012 with potential proposing organisations and other community organisations.

 

Specific non-government organisations consulted as part of this process include: ACCESS Inc; AMES; Amnesty International Australia; Anglicare Southern Queensland; Anglicare Victoria; Armidale Sanctuary Humanitarian Settlement; Assyrian Australian Association; Assyrian Universal Alliance; Australian Catholic Migrant and Refugee Office; Baptist Care SA; Kateb Hazara; MacKillop Family Services; Metro Migrant Resource Centre; Migration Institute of Australia; Multicultural Development Association; Multicultural Resource Centre of South Australia; Navitas English; Queensland African Communities Council; Refugee Council of Australia; Refugee Resettlement Advisory Council; Sabian Mandæan Association of Australia; Sabian Mandæan Cultural Club; Sanctuary Australia Foundation; Settlement Council of Australia; Settlement Services International; and Tibetan Information Office.

 

At a Commonwealth Government level, the Department has consulted, in the course of development of the Pilot program, with the: Attorney-General's Department; Australian Bureau of Statistics; Australian Government Solicitor; Department of Agriculture, Fisheries and Forestry; Department of Education, Employment and Workplace Relations; Department of Families, Housing, Community Services and Indigenous Affairs; Department of Finance and Deregulation; Department of Health and Ageing; Department of Human Services; Department of Industry, Innovation, Science, Research and Tertiary Education; Department of Prime Minister and Cabinet; Department of Regional Australia, Local Government, Arts and Sport; Department of Transport and Infrastructure; and The Treasury.

 

The Act specifies no conditions that need to be satisfied before the power to make Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulation commences on 1 June 2013.


ATTACHMENT A

 

 

AUTHORISING PROVISIONS

 

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), which provides that the Migration Regulations 1994 ('the Regulations') may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A of the Act).

 

*         Subsection 40(1), which provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

 

*         Subsection 45B(1), which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.

 

*         Subsection 45C(1), which provides that the Regulations may:

 

o   provide that visa application charge may be payable in instalments;

o   specify how those instalments are to be calculated; and

o   specify when the instalments are payable.

 

*         Subsection 46(1), which relevantly provides that, subject to subsections 46(1A), (2) and (2A), an application for a visa is valid if, and only if:

 

o   it is for a visa of a class specified in the application; and

o   it satisfies the criteria and requirements prescribed under this section; and

o   subject to the Regulations providing otherwise, any visa application charge that the Regulations require to be paid at the time when the application is made has been paid; and

o   any fees payable in respect of it under the Regulations have been paid.

 

*         Paragraph 504(1)(a), which provides that the Governor-General may make regulations that make provision for and in relation to the charging and recovery of fees in respect of any matter under the Act or the Regulations, including the fees payable in connection with the review of decisions made under the Act or the Regulations, whether or not such review is provided for by or under the Act.

 


ATTACHMENT B

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Inclusion of a Visa Application Charge ('VAC') and new form 1417 enabling persons applying for Refugee and Humanitarian (Class XB) visas to be privately proposed by an approved proposing organisation located in Australia.

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

*         Schedule 1 - Amendments of Migration Regulations 1994

 

Overview of the amendments

 

On 8 May 2012, the Government announced it would seek the Australian community's views on the feasibility of introducing a private sponsorship pilot program.  A discussion paper seeking community views was released on 20 June 2012.

 

The Expert Panel on Asylum Seekers ('the Panel') considered private sponsorship in its report, released on 13 August 2012.  The Panel noted that:

 

Private and community sponsorship within Australia's Humanitarian Program could provide some important opportunities to assist with its expansion in a productive, cost-effective and community-based way.  It is important that the private and community sponsorship arrangements be responsibly utilised to their full potential.

 

Called the Community Proposal Pilot, the Pilot is intended to explore the capacity of the Australian community to provide a significant financial contribution towards the costs of humanitarian settlement and practical support to assist humanitarian entrants to settle successfully.

 

The Pilot is being trialled to provide a mechanism for communities within Australia to identify and support individuals in humanitarian situations offshore for entry into Australia.  All applicants must meet the existing criteria for a humanitarian visa.

 

It is intended that the Pilot will be implemented through amendments to the Migration Regulations 1994 ('the Regulations') to introduce a:

 

*         two-stage Visa Application Charge ('VAC') into Item 1402 - Refugee and Humanitarian (Class XB) of the Regulations; and

*         amendments to the criteria for Class XB visa subclasses under Schedule 2 of the Regulations.

 

The Government expects that the VAC will be paid by community organisations in Australia, on behalf of applicants.

 

The Legislative Instrument provided for in Item 1402(3)(a) of the Regulations will be remade to require applications under the Pilot to be lodged at the Offshore Humanitarian Processing Centre in Melbourne.

 

Human rights implications

 

The amendments have been considered against each of the seven core international human rights treaties.

 

The amendments to the Regulations are technical insofar as they require the payment of a VAC for the making of a valid visa application and require a visa applicant to have an approved proposing organisation at the time of application and time of decision on their Class XB visa.

 

As such, the amendments do not engage any of the rights enunciated in the seven core international human rights treaties.

 

Conclusion

 

The Legislative Instrument is compatible with human rights because it does not engage Australia's human rights obligations.

 

 

The Hon Brendan O'Connor MP, Minister for Immigration and Citizenship

 


ATTACHMENT C

 

 

Details of the Migration Amendment Regulation 2013 (No. 2)

 

Section 1 - Name of Regulation

 

This section provides that this regulation is the Migration Amendment Regulation 2013 (No. 2) ('the Regulation').

 

Section 2 - Commencement

 

This section provides that the Regulation commences on 1 June 2013.

 

The purpose of this section is to provide for when the amendments made by the Regulation commence.

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 ('the Act').

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in the Regulation will operate.

 

Schedule 1 - Amendment of the Migration Regulations 1994

 

Item [1] - Subitem 1402(2) of Schedule 1

 

This item repeals and substitutes subitem 1402(2) of Part 4 of Schedule 1 to the Migration Regulations 1994 ('the Principal Regulations').

 

Subitem 1402(2) provided that the visa application charge ('VAC') for a Refugee and Humanitarian (Class XB) visa is nil.  Substituted subitem 1402(2) sets out a requirement that certain applicants are required to pay a VAC in the amounts and instalments prescribed in subitem 1402(2) and all other applicants are not required to pay any VAC.  The applicants required to pay a VAC will be those participating in the Community Proposal Pilot ('the Pilot program').

 

Substituted paragraph 1402(2)(a) provides, in a table format, for the first instalment of the VAC for a Class XB visa.  The first instalment of a VAC is required at the time an application is made and is necessary in order for the application to be valid and able to be considered by the Minister.  Item 1 in the table in substituted paragraph 1402(2)(a) provides that, for an applicant whose application includes a proposal by an approved proposing organisation described in Part 200, 201, 202, 203 or 204 of Schedule 2, the first instalment of VAC is $2,680.  Item 2 in the table in substituted paragraph 1402(2)(a) provides that, for any other applicant, the first instalment of the VAC is nil.

 

Substituted paragraph 1402(2)(b) provides, in a table format, for the second instalment of the VAC for a Class XB visa.  The second instalment is required to be paid after the Minister has assessed that all of the relevant visa criteria have been satisfied.  Where a second instalment is required, it must be paid before a visa can be granted.  Item 1 in the table in substituted paragraph 1402(2)(b) provides that, for an applicant whose application includes a proposal by an approved proposing organisation described in Part 200, 201, 202, 203 or 204 of Schedule 2 and who satisfies the primary criteria for the grant of the visa, the second instalment of VAC is $16,444.  Item 2 in the table in substituted paragraph 1402(2)(b) provides that, for an applicant whose application includes a proposal by an approved proposing organisation described in Part 200, 201, 202, 203 or 204 of Schedule 2 and who satisfies the secondary criteria for the grant of the visa, the second instalment of the VAC is $2,680.  Item 3 in the table in substituted paragraph 1402(2)(b) provides that, for any other applicant, the second instalment of the VAC is nil.

 

The Pilot program is intended to provide a mechanism for communities in Australia to identify and propose individuals and families outside Australia in humanitarian need for entry into Australia.  The Pilot program is implemented to provide an opportunity for organisations who have been approved by, and entered into a deed of agreement with, the Department of Immigration and Citizenship ('the Department') to provide a financial contribution towards the cost of humanitarian settlement and practical support to assist humanitarian entrants to settle successfully in Australia.  The Pilot program will be allocated  up to 500 of 20,000 visa places available from within the Humanitarian Program.  Processing of applications made under the Pilot program will be prioritised.

 

The organisations approved by, and who have entered into a deed of agreement with, the Department will be approved proposing organisations described in in Part 200, 201, 202, 203 or 204 of Schedule 2 to the Principal Regulations.

 

The purpose of this amendment is to provide that, in order for an applicant taking part in the Pilot program to make a valid application for a Class XB visa, the applicant must pay the VAC in the amounts and instalments prescribed in substituted subitem 1402(2) of Schedule 1.  The amount of VAC prescribed in substituted subitem 1402(2) will not exceed the VAC limit prescribed in section 5 of the Migration (Visa Application) Charge Act 1997.

 

While, under section 45A of the Act, it is the non-citizen who makes an application for a visa who is liable to pay the VAC, it is intended that the approved proposing organisation will assist applicants whom they have proposed for the Pilot program in paying the relevant instalments of VAC.

 

Item [2] - Paragraph 1402(3)(a) of Schedule 1

 

This item omits the phrase 'in a Gazette Notice' in paragraph 1402(3)(a) of Part 4 of Schedule 1 to the Principal Regulations and substitutes that with the phrase 'by the Minister in an instrument in writing'.

 

The purpose of this amendment is to ensure that the terminology used in paragraph 1402(3)(a) is consistent with the terminology used in subsection 5(1) of the Legislative Instruments Act 2003.

 

Item [3] - After subitem 1402(3) of Schedule 1

 

This item inserts a new subitem 1402(3A) and two notes into Part 4 of Schedule 1 to the Principal Regulations.

 

This amendment provides that, in addition to subitem 1402(3) of Schedule 1, for an application that includes a proposal by an approved proposing organisation described in Part 200, 201, 202, 203 or 204 of Schedule 2:

 

 

New note 1 provides that this subitem commences on 1 June 2013 as part of the Pilot program.  It also provides that applicants who made a valid application for a Class XB visa, using form 842, before 1 June 2013 may make a new application for a Class XB visa as part of that program, but are not required to do so.

 

New note 2 provides that applicants wishing to make a new application for a Class XB visa as part of the Pilot program must not include form 681 as part of that application.

 

Form 842 (Application for an Offshore Humanitarian visa) is the application form that an applicant must use to apply for a Class XB visa.  Form 681 (Refugee and special humanitarian proposal) is the form upon which proposers may propose the visa applicant's entry to Australia.  This form is used by proposers who are Australian citizens or permanent residents.  These amendments will maintain those arrangements but create an alternate avenue by which visa applicants may be proposed for entry to Australia by an approved proposing organisation.

 

New form 1417 is the prescribed form upon which an approved proposing organisation may propose the visa applicant's entry to Australia under the Pilot program.

 

This item requires that, in order to make a valid application for a Class XB visa under the Pilot program, the application must include form 1417, completed by the approved proposing organisation, and must not include form 681.  The item also clarifies that an existing applicant for a Class XB visa is not prevented from making a new application for a Class XB visa under the Pilot program.  The purpose is to ensure that a person cannot apply for a Class XB visa under the Pilot program without having been proposed by an approved proposing organisation.

 

Item [4] - Clause 200.111 of Schedule 2

 

This item inserts a definition of 'approved proposing organisation' and a note into clause 200.111 of Part 200 of Schedule 2 to the Principal Regulations.

 

This definition provides that approved proposing organisation means an organisation in relation to which the following requirements are met:

 

 

The new note under this amendment provides that, when this subclause commenced on 1 June 2013, these requirements were part of the Department's Pilot program.

 

The purpose of this amendment is to provide for what is an approved proposing organisation.  An approved proposing organisation may propose a person for entry to Australia under the Pilot program.

 

Item [5] - Subclause 200.211(1) of Schedule 2

 

This item omits the phrase 'The applicant:' in subclause 200.211(1) of Part 200 of Schedule 2 to the Principal Regulations and substitutes that with the phrase 'If the application does not include a proposal by an approved proposing organisation, the applicant:'.

 

The purpose of this amendment is to ensure that subclause 200.211(1) of Schedule 2 applies only to applicants who make an application for a Class XB visa which does not include a proposal by an approved proposing organisation.  This amendment is also necessary to distinguish between the criteria that must be satisfied at the time of application in subclause 200.211(1) and the criteria in new clause 200.212, which inserts the criteria that must be satisfied at the time of application for a Class XB visa under the Pilot program.

 

Item [6] - After clause 200.211 of Schedule 2

 

This item inserts a new clause 200.212 into Part 200 of Schedule 2 to the Principal Regulations.

 

Clause 200.212 sets out the criteria that applicants for a Class XB visa must satisfy at the time of application if they make an application which includes a proposal by an approved proposing organisation.

 

Clause 200.212 provides that, if the application includes a proposal by an approved proposing organisation:

 

 

New paragraph 200.212(a) replicates criteria for the grant of a Subclass 200 (Refugee) visa ('Subclass 200 visa'), which is that the applicant is subject to persecution in the applicant's home country and is living in a country other than the applicant's home country.

 

New paragraph 200.212(b) prevents the grant of a Class XB visa under the Pilot program if it was made on behalf of an irregular maritime arrival (see subregulation 2.07AM(5)).  This is consistent with government policy to prevent irregular maritime arrivals who meet the definition of subregulation 2.07AM(5) from proposing visa applicants for entry to Australia under the Humanitarian Program.

 

New paragraph 200.212(c) reflects the fact that a proposal is made before an application for a Class XB visa under the Pilot program is made and that the proposal must continue to be in place at time of application.

 

The purpose of this amendment is to provide for the criteria that an applicant for a Subclass 200 visa must satisfy at time of application where the application includes a proposal by an approved proposing organisation.  These criteria are alternate to the criteria in clause 200.211 which apply to an applicant who makes an application for a Class XB visa that does not include a proposal by an approved proposing organisation.

 

Item [7] - Clause 200.221 of Schedule 2

 

This item repeals and substitutes clause 200.221 of Part 200 of Schedule 2 to the Principal Regulations.

 

Clause 200.221 provided that the applicant continues to satisfy the criterion in clause 200.211.

 

Substituted clause 200.221 provides that:

 

*         if the criteria in clause 200.211 apply to the applicant, the applicant continues to satisfy the criteria; and

*         if the criteria in clause 200.212 apply to the applicant, the applicant must continue to satisfy the criteria.

 

The purpose of this amendment is to ensure that, if an applicant were to make an application that includes a proposal by an approved proposing organisation, he or she would be required to continue to satisfy, at the time the application is decided, the criteria set out in new clause 200.212.  All other applicants would be required to continue to satisfy the existing criteria.  This amendment is consequential to the insertion of new clause 200.212 into Part 200 of Schedule 2 to the Principal Regulations.

 

Item [8] - Clause 200.222 of Schedule 2

 

This item omits the phrase 'The Minister is satisfied' in clause 200.222 of Part 200 of Schedule 2 to the Principal Regulations and substitutes that with the phrase '(1) If the application does not include a proposal by an approved proposing organisation, the Minister is satisfied'.

 

Clause 200.222 provides for the factors that the Minister is to take into account when considering if there are compelling reasons for granting the applicant a permanent visa.  This amendment is consequential to new subclause 200.222(2), which applies to visa applicants applying for a Class XB visa under the Pilot program.  This amendment clarifies that the existing visa criteria in renumbered subclause 200.222(1) do not apply to those applicants.

 

The purpose of this amendment is to clarify to which applicants the criteria in renumbered subclause 200.222(1) apply.

 

Item [9] - At the end of clause 200.222 of Schedule 2

 

This item adds a new subclause 200.222(2) in clause 200.222 of Part 200 of Schedule 2 to the Principal Regulations.

 

New subclause 200.222(2) provides that, if the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

These factors substantially replicate the existing factors with the only difference being that, for applicants for a Class XB visa under the Pilot program, the Minister is to consider the capacity of the approved proposing organisation to provide for the permanent settlement of that particular applicant in Australia as distinct from applicants in general.

 

The purpose of this amendment is to set out a criterion that must be satisfied at the time of decision by an applicant for the grant of a Class XB visa under the Pilot program.

 

Item [10] - Paragraph 200.311(a) of Schedule 2

 

This item repeals and substitutes paragraph 200.311(a) of Part 200 of Schedule 2 to the Principal Regulations.

 

Paragraph 200.311(a) provided that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.211(1)(a) or (aa).  Paragraphs 200.211(1)(a) and (aa) apply to applicants for a Class XB visa who are not seeking family reunion through the Humanitarian program.

 

Substituted paragraph 200.311(a) replicates the criterion in previous paragraph 200.311(a) but adds the alternative criterion that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 200.212(a) (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country and is living in a country other than their home country).

 

The purpose of this amendment is to enable members of a family unit of an applicant who satisfies the primary criteria for the grant of a Subclass 200 visa under the Pilot program to satisfy the secondary criteria at time of application.

 

Item [11] - Paragraph 200.321(a) of Schedule 2

 

This item repeals and substitutes paragraph 200.321(a) of Part 200 of Schedule 2 to the Regulations.

 

Paragraph 200.321(a) provided that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of either paragraph 200.211(1)(a) or (aa)), is the holder of a Subclass 200 visa.

 

Substituted paragraph 200.321(a) replicates the criterion in previous paragraph 200.321(a) but adds the alternative criterion that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 200.212(a), is the holder of a Subclass 200 visa (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country and is living in a country other than their home country).

 

The purpose of this amendment is to ensure that the criterion in paragraph 200.321(a) extends to applicants who seek to satisfy the secondary criteria at the time of decision for a Subclass 200 visa, in circumstances where the person they are seeking to make a combined application with made an application for a Class XB visa that included a proposal by an approved proposing organisation.

 

Item [12] - At the end of clause 200.411 of Schedule 2

 

This item inserts a new note into clause 200.411 of Part 200 of Schedule 2 to the Principal Regulations.

 

The new note provides that, if the application includes a proposal by an approved proposing organisation, the second instalment of the visa application charge must be paid before the visa can be granted.

 

The purpose of this amendment is to note that applicants whose application for a Class XB visa includes a proposal by an approved proposing organisation, and who are assessed as otherwise meeting the criteria for that visa, must pay the second instalment of the VAC before the visa can be granted.

 

Item [13] - Clause 201.111 of Schedule 2

 

This item inserts a definition of 'approved proposing organisation' and a note into clause 201.111 of Part 201 of Schedule 2 to the Principal Regulations.

 

The definition provides that approved proposing organisation means an organisation in relation to which the following requirements are met:

 

 

The new note under this amendment provides that, when this subclause commenced on 1 June 2013, these requirements were part of the Department's Pilot program.

 

The purpose of this amendment is to provide the definition of an approved proposing organisation.  An approved proposing organisation may propose a person for entry to Australia under the Pilot program.

 

Item [14] - Subclause 201.211(1) of Schedule 2

 

This item omits the phrase 'The applicant:' in subclause 201.211(1) of Part 201 of Schedule 2 to the Principal Regulations and substitutes that with the phrase 'If the application does not include a proposal by an approved proposing organisation, the applicant:'.

 

The purpose of this amendment is to ensure that subclause 201.211(1) of Schedule 2 applies only to applicants who make an application for a Class XB visa which does not include a proposal by an approved proposing organisation.  This amendment is also necessary to distinguish between the criteria that must be satisfied at the time of application in subclause 201.211(1) and the criteria in new clause 201.212, which inserts the criteria that must be satisfied at the time of application for a Class XB visa under the Pilot program.

 

Item [15] - After clause 201.211 of Schedule 2

 

This item inserts a new clause 201.212 into Part 201 of Schedule 2 to the Principal Regulations.

 

Clause 201.212 sets out the criteria that applicants for a Class XB visa must satisfy at the time of application if they make an application which includes a proposal by an approved proposing organisation.

 

Clause 201.212 provides that, if the application includes a proposal by an approved proposing organisation:

 

 

New paragraph 201.212(a) replicates the criteria for the grant of a Subclass 201 (In-country special humanitarian) visa ('Subclass 201 visa'), which is that the applicant is subject to persecution in the applicant's home country and is living in the applicant's home country.

 

New paragraph 201.212(b) prevents the grant of a Class XB visa under the Pilot program if it was made on behalf of an irregular maritime arrival (see subregulation 2.07AM(5)).  This is consistent with government policy to prevent irregular maritime arrivals who meet the definition of subregulation 2.07AM(5) from proposing visa applicants for entry to Australia under the Humanitarian Program.

 

New paragraph 201.212(c) reflects the fact that a proposal is made before an application for a Class XB visa under the Pilot program is made and that the proposal must continue to be in place at time of application.

 

The purpose of this amendment is to provide for the criteria that an applicant for a Subclass 201 visa must satisfy at time of application where the application includes a proposal by an approved proposing organisation.  These criteria are alternate to the criteria in clause 201.211 which apply to an applicant who makes an application for a Class XB visa that does not include a proposal by an approved proposing organisation.

 

Item [16] - Clause 201.221 of Schedule 2

 

This item repeals and substitutes clause 201.221 of Part 201 of Schedule 2 to the Principal Regulations.

 

Clause 201.221 provided that the applicant continues to satisfy the criterion in clause 201.211.

 

Substituted clause 201.221 provides that:

 

*         if the criteria in clause 201.211 apply to the applicant, the applicant continues to satisfy the criteria; and

*         if the criteria in clause 201.212 apply to the applicant, the applicant continues to satisfy the criteria.

 

The purpose of this amendment is to ensure that, if an applicant were to make an application that includes a proposal by an approved proposing organisation, he or she is required to continue to satisfy, at the time the application is decided, the criteria set in new clause 201.212.  All other applicants are required to continue to satisfy the existing criteria.  This amendment is consequential to the insertion of new clause 201.212 into Part 201 of Schedule 2 to the Principal Regulations.

 

Item [17] - Clause 201.222 of Schedule 2

 

This item omits the phrase 'The Minister is satisfied' in clause 201.222 of Part 201 of Schedule 2 to the Principal Regulations and substitutes that with the phrase '(1) If the application does not include a proposal by an approved organisation, the Minister is satisfied'.

 

Clause 201.222 provided for the factors that the Minister must take into account when considering if there are compelling reasons for granting the applicant a permanent visa.  This amendment is consequential to new subclause 201.222(2), which applies to visa applicants applying for a Class XB visa under the Pilot program.  This amendment clarifies that the existing visa criteria in renumbered subclause 201.222(1) do not apply to those applicants.

 

The purpose of this amendment is to clarify to which applicants the criteria in renumbered subclause 200.222(1) apply.

 

Item [18] - At the end of clause 201.222 of Schedule 2

 

This item adds a new subclause 201.222(2) in clause 201.222 of Part 201 of Schedule 2 to the Principal Regulations.

 

New subclause 201.222(2) provides that, if the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

These factors substantially replicate the existing factors with the only difference being that, for applicants for a Class XB visa under the Pilot program, the Minister is to consider the capacity of the approved proposing organisation to provide for the permanent settlement of that particular applicant in Australia as distinct from applicants in general.

 

The purpose of this amendment is to set out a criterion that must be satisfied at the time of decision by an applicant for grant of a Class XB visa under the Pilot program.

 

Item [19] - Paragraph 201.311(a) of Schedule 2

 

This item repeals and substitutes paragraph 201.311(a) of Part 201 of Schedule 2 to the Principal Regulations.

 

Paragraph 201.311(a) provided that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 201.211(1)(a) or (aa).  Paragraphs 201.211(1)(a) or (aa) apply to applicants for a Class XB visa who are not seeking family reunion through the Humanitarian program.

 

Substituted paragraph 201.311(a) replicates the criterion in previous paragraph 201.311(a) but adds the alternative criterion that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 201.212(a) (that is, a person whose application for the Subclass 201 visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country and is living in their home country).

 

The purpose of this amendment is to enable members of a family unit of an applicant who satisfies the primary criteria for the grant of a Subclass 201 visa under the Pilot program to satisfy the secondary criteria at the time of application.

 

Item [20] - Paragraph 201.321(a) of Schedule 2

 

This item repeals and substitutes paragraph 201.321(a) of Part 201 of Schedule 2 to the Principal Regulations.

 

Paragraph 201.321(a) provided that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of either paragraph 201.211(1)(a) or (aa)), is the holder of a Subclass 201 visa.

 

Substituted paragraph 201.321(a) replicates the criterion in previous paragraph 201.321(a) but adds the alternative criterion that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 201.212(a), is the holder of a Subclass 201 visa (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country and is living in their home country).

 

The purpose of this amendment is to ensure that the criterion in paragraph 201.321(a) extends to applicants who seek to satisfy the secondary criterion at the time of decision for a Subclass 201 visa, in circumstances where the person they are seeking to make a combined application with made an application for a Class XB visa that included a proposal by an approved proposing organisation.

 

Item [21] - At the end of clause 201.411 of Schedule 2

 

This item inserts a new note into clause 201.411 of Part 201 of Schedule 2 to the Principal Regulations.

 

The new note provides that, if the application includes a proposal by an approved proposing organisation, the second instalment of the visa application charge must be paid before the visa can be granted.

 

The purpose of this amendment is to note that applicants whose application for a Class XB visa includes a proposal by an approved proposing organisation, and who are otherwise assessed as meeting the criteria for that visa, must pay the second instalment of the VAC before the visa can be granted.

 

Item [22] - Clause 202.111 of Schedule 2

 

This item inserts a definition of 'approved proposing organisation' and a note into clause 202.111 of Part 202 of Schedule 2 to the Principal Regulations.

 

This definition provides that approved proposing organisation means an organisation in relation to which the following requirements are met:

 

 

The new note under this amendment provides that, when this subclause commenced on 1 June 2013, these requirements were part of the Department's Pilot program.

 

The purpose of this amendment is to provide the definition of an approved proposing organisation.  An approved proposing organisation may propose a person for entry to Australia under the Pilot program.

 

Item [23] - Subclause 202.211(1) of Schedule 2

 

This item omits the phrase 'The applicant:' in subclause 202.211(1) in Part 202 of Schedule 2 to the Principal Regulations and substitutes that with the phrase 'If the application does not include a proposal by an approved proposing organisation, the applicant:'.

 

The purpose of this amendment is to ensure that subclause 202.211(1) of Schedule 2 applies only to applicants who make an application for a Class XB visa which does not include a proposal by an approved proposing organisation.  This amendment is also necessary to distinguish between the criteria that must be satisfied at the time of application in subclause 202.211(1) and the criteria in new clause 202.211, which inserts the criteria that must be satisfied at the time of application for a Class XB visa under the Pilot program.

 

Item [24] - After clause 202.211 of Schedule 2

 

This item inserts a new clause 202.212 into Part 202 of Schedule 2 to the Principal Regulations.

 

Clause 202.212 sets out the criteria that applicants for a Class XB visa must satisfy at the time of application, if they make an application which includes a proposal by an approved proposing organisation.

 

Clause 202.212 provides that, if the application includes a proposal by an approved proposing organisation:

 

*         the applicant is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country; and

*         the proposal is not made on behalf of another person who is mentioned in subregulation 2.07AM(5); and

*         the applicant is still proposed by the approved proposing organisation.

 

New paragraph 202.212(a) replicates the criteria for the grant of a Subclass 202 (Global Special Humanitarian) visa ('Subclass 202 visa') which is that the applicant is subject to substantial discrimination, amounting to gross violation of human rights, in their home country and is living in a country other than their home country.

 

New paragraph 202.212(b) prevents the grant of a Class XB visa under the Pilot program if it was made on behalf of an irregular maritime arrival (see subregulation 2.07AM(5)).  This is consistent with government policy to prevent irregular maritime arrivals who meet the definition of subregulation 2.07AM(5) from proposing visa applicants for entry to Australia under the Humanitarian Program.

 

New paragraph 202.212(c) reflects the fact that a proposal is made before an application for a Class XB visa under the Pilot program is made and that the proposal must continue to be in place at time of application.

 

The purpose of this amendment is to provide for criteria that an applicant for a Subclass 202 visa must satisfy at time of application where the application includes a proposal by an approved proposing organisation.  These criteria are alternative to the criteria in clause 202.211 which apply to an applicant who makes an application for a Class XB visa that does not include a proposal by an approved proposing organisation.

 

Item [25] - Clause 202.221 of Schedule 2

 

This item repeals and substitutes clause 202.221 of Part 202 of Schedule 2 to the Principal Regulations.

 

Clause 202.221 provided that the applicant continues to satisfy the criterion in clause 202.211.

 

Substituted clause 202.221 provides that:

 

*         if the criteria in clause 202.211 apply to the applicant, that the applicant must continue to satisfy the criteria; and

*         if the criteria in clause 202.212 apply to the applicant, the applicant must continue to satisfy the criteria.

 

The purpose of this amendment is to ensure that, if an applicant were to make an application that includes a proposal by an approved proposing organisation, he or she would be required to continue to satisfy, at the time the application is decided, the criteria set out in new clause 202.212.  All other applicants are required to continue to satisfy the existing criteria.  This amendment is consequential to the insertion of new clause 202.212 into Part 202 of Schedule 2 to the Principal Regulations.

 

Item [26] - Subclause 202.222(2) of Schedule 2

 

This item repeals and substitutes subclause 202.222(2) of, and inserts a new subclause 202.222(3) into, Part 202 of Schedule 2 to the Principal Regulations.

 

Substituted subclause 202.222(2)

 

Subclause 202.222(2) provides that, if subclause 202.222(1) does not apply, and the application does not include a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

The purpose of this amendment is to ensure that clause 202.222(2) of Schedule 2 applies only to an applicant who makes an application for a Class XB visa which does not include a proposal by an approved proposing organisation.

 

New subclause 202.222(3)

 

Subclause 202.222(3) provides that, if the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

These factors substantially replicate the existing factors, with the only difference being that, for applicants for a Class XB visa under the Pilot program, the Minister is to consider the capacity of the approved proposing organisation to provide for the permanent settlement of that particular applicant in Australia, as distinct from applicants in general.

 

The purpose of this amendment is to set out criteria that must be satisfied at the time of decision by an applicant for a Class XB visa under the Pilot program.

 

Item [27] - Paragraph 202.311(a) of Schedule 2

 

This item repeals and substitutes paragraph 202.311(a) of Part 202 of Schedule 2 to the Principal Regulations.

 

Paragraph 202.311(a) provided that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 202.211(1)(a).  Paragraph 202.211(1)(a) applies to applicants for a Class XB visa who are not seeking family reunion through the Humanitarian program.

 

Substituted paragraph 202.311(a) replicates the criterion in previous paragraph 202.311(a) but adds the alternative criterion that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 202.212(a) (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to substantial discrimination, amounting to gross violation of human rights, in their home country and is living in a country other than their home country).

 

The purpose of this amendment is to enable members of a family unit of an applicant who satisfies the primary criteria for the grant of a Subclass 202 visa under the Pilot program to satisfy the secondary criteria at time of application.

 

Item [28] - Paragraph 202.321(a) of Schedule 2

 

This item repeals and substitutes paragraph 202.321(a) of Part 202 of Schedule 2 to the Principal Regulations.

 

Paragraph 202.321(a) provided that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 202.211(1)(a)), is the holder of a Subclass 202 visa.

 

Substituted paragraph 202.321(a) replicates the criterion in previous paragraph 202.321(a) but adds the alternative criterion that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 202.212(a), is the holder of a Subclass 202 visa (that is, a person whose application for a Subclass 202 visa includes a proposal by an approved proposing organisation and who is subject to substantial discrimination, amounting to gross violation of human rights, in their home country and is living in a country other than their home country).

 

The purpose of this amendment is to ensure that the criterion in paragraph 202.321(a) extends to applicants who seek to satisfy the secondary criterion at the time of decision for a Subclass 202 visa, in circumstances where the person they are seeking to make a combined application with made an application for a Class XB visa that included a proposal by an approved proposing organisation.

 

Item [29] - At the end of clause 202.411 of Schedule 2

 

This item adds a new note into clause 202.411 of Part 202 of Schedule 2 to the Principal Regulations.

 

The new note provides that, if the application includes a proposal by an approved proposing organisation, the second instalment of the visa application charge must be paid before the visa can be granted.

 

The purpose of this amendment is to note that applicants whose application for a Class XB visa includes a proposal by an approved proposing organisation, and who are assessed as otherwise meeting the criteria for that visa, must pay the second instalment of the VAC before the visa can be granted.

 

Item [30] - Clause 203.111 of Schedule 2

 

This item inserts a definition of 'approved proposing organisation' and a note into clause 203.111 of Part 203 of Schedule 2 to the Principal Regulations.

 

This definition provides that approved proposing organisation means an organisation in relation to which the following requirements are met:

 

 

The new note under this amendment provides that, when this subclause commenced on 1 June 2013, these requirements were part of the Department's Pilot program.

 

The purpose of this amendment is to provide the definition of an approved proposing organisation.  An approved proposing organisation may propose a person for entry to Australia under the Pilot program.

 

Item [31] - Subclause 203.211(1) of Schedule 2

 

This item omits the phrase 'The applicant:' in subclause 203.211(1) in Part 203 of Schedule 2 to the Principal Regulations and substitutes that with the phrase 'If the application does not include a proposal by an approved proposing organisation, the applicant:'.

 

The purpose of this amendment is to ensure that subclause 203.211(1) of Schedule 2 applies only to applicants who make an application for a Class XB visa which does not include a proposal by an approved proposing organisation.  This amendment is also necessary to distinguish between the criteria that must be satisfied at the time of application in subclause 203.211(1) and the criteria in new clause 203.212, which inserts the criteria that must be satisfied at the time of application for a Class XB visa under the Pilot program.

 

Item [32] - After clause 203.211 of Schedule 2

 

This item inserts a new clause 203.212 into Part 203 of Schedule 2 to the Principal Regulations.

 

Clause 203.212 sets out the criteria that applicants for a Class XB visa must satisfy at the time of application if they make an application for a Class XB visa under the Pilot program.

 

Clause 203.212 provides that, if the application includes a proposal by an approved proposing organisation:

 

*         the applicant is subject to persecution in the applicant's home country, whether the applicant is living in the applicant's home country or in another country; and

*         the proposal is not made on behalf of another person who is mentioned in subregulation 2.07AM(5); and

*         the applicant is still proposed by the approved proposing organisation.

 

New paragraph 200.212(a) replicates criteria for the grant of a Subclass 203 (Emergency Rescue) visa ('Subclass 203 visa') which is that the applicant is subject to persecution and living in their home country or in another country.

 

New paragraph 203.212(b) prevents the grant of a Class XB visa under the Pilot program if it was made on behalf of an irregular maritime arrival (see subregulation 2.07AM(5)).  This is consistent with government policy to prevent irregular maritime arrivals who meet the definition of subregulation 2.07AM(5) from proposing visa applicants for entry to Australia under the Humanitarian Program.

 

New paragraph 203.212(c) reflects the fact that a proposal is made before an application for a Class XB visa under the Pilot program is made and that the proposal must continue to be in place at time of application.

 

The purpose of this amendment is to provide for criteria that an applicant for a Subclass 203 visa must satisfy at time of applicant where the application includes a proposal by an approved proposing organisation. These criteria are alternative to the criteria in clause 203.211 which apply to an applicant who makes an application for a Class XB visa that does not include a proposal by an approved proposing organisation.

 

Item [33] - Clause 203.221 of Schedule 2

 

This item repeals and substitutes clause 203.221 of Part 203 of Schedule 2 to the Principal Regulations.

 

Clause 203.221 provided that the applicant continues to satisfy the criterion in clause 203.211.

 

Substituted clause 203.221 provides that:

 

*         if the criteria in clause 203.211 apply to the applicant, the applicant continues to satisfy the criteria; and

*         if the criteria in clause 203.212 apply to the applicant, the applicant continues to satisfy the criteria.

 

The purpose of this amendment is to ensure that if an applicant were to make an application that includes a proposal by an approved proposing organisation, he or she would be required to continue to satisfy, at the time the application is decided, the criteria set out in new clause 203.212.  All other applicants are required to continue to satisfy the existing criteria.  This amendment is consequential to the insertion of new clause 203.212 into Part 203 of Schedule 2 to the Principal Regulations.

 

Item [34] - Clause 203.222 of Schedule 2

 

This item omits the phrase 'The Minister is satisfied' in clause 203.222 of Part 203 of Schedule 2 to the Principal Regulations and substitutes that with the phrase '(1) If the application does not include a proposal by an approved proposing organisation, the Minister is satisfied'.

 

Clause 203.222 sets out the factors that the Minister must take into account when considering if there are compelling reasons for granting the applicant a permanent visa.  This amendment is consequential to new subclause 203.222(2), which applies to visa applicants applying for a Class XB visa under the Pilot program.  This amendment clarifies that the existing visa criteria in renumbered subclause 203.222(1) do not apply to those applicants.

 

The purpose of this amendment is to clarify to which applicants the criteria in renumbered subclause 203.222(1) apply.

 

Item [35] - At the end of clause 203.222 of Schedule 2

 

This item adds a new subclause 203.222(2) in clause 203.222 of Part 203 of Schedule 2 to the Principal Regulations.

 

New subclause 203.222(2) provides, if the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

These factors substantially replicate the existing factors, with the only difference being that, for applicants for a Class XB visa under the Pilot program, the Minister is to consider the capacity of the approved proposing organisation to provide for the permanent settlement of that particular applicant in Australia, as distinct from applicants in general.

 

The purpose of this amendment is to set out a criterion that must be satisfied at the time of decision by an applicant for Class XB visa under the Pilot program.

 

Item [36] - Paragraph 203.311(a) of Schedule 2

 

This item repeals and substitutes paragraph 203.311(a) in Part 203 of Schedule 2 to the Principal Regulations.

 

Paragraph 203.311(a) provided that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 203.211(1)(a).  Paragraph 203.211(1)(a) applies to applicants for a Class XB visa who are not seeking family reunion through the Humanitarian program.

 

Substituted paragraph 203.311(a) replicates the criterion in previous paragraph 203.311(a) but adds the alternative criterion that the applicant is a member of the family unit of, and have made a combined application with, a person who meets, or has met, the requirements of paragraph 203.212(a) (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country and is living in a country other than their home country).

 

The purpose of this amendment is to enable members of a family unit of an applicant who satisfies the primary criteria for the grant of a Subclass 203 visa under the Pilot program to satisfy the secondary criteria at the time of application.

 

Item [37] - Paragraph 203.321(a) of Schedule 2

 

This item repeals and substitutes paragraph 203.321(a) of Part 203 of Schedule 2 to the Principal Regulations.

 

Paragraph 203.321(a) provided that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 203.211(1)(a)), is the holder of a Subclass 203 visa.

 

Substituted paragraph 203.321(a) replicates the criterion in previous paragraph 203.321(a) but adds the alternative criterion that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 203.212(a), is the holder of a Subclass 203 visa (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and who is subject to persecution in their home country whether they are living in their home country or in another country).

 

The purpose of this amendment is to ensure that the criterion in paragraph 203.321(a) extends to applicants who seek to satisfy the secondary criterion at the time of decision for a Subclass 203 visa, in circumstances where the person they are seeking to make a combined application with made an application for a Class XB visa that included a proposal by an approved proposing organisation.

 

Item [38] - At the end of clause 203.411 of Schedule 2

 

This item inserts a new note into clause 203.411 of Part 203 of Schedule 2 to the Principal Regulations.

 

The new note provides that, if the application includes a proposal by an approved proposing organisation, the second instalment of the visa application charge must be paid before the visa can be granted.

 

The purpose of this amendment is to note that applicants whose application for a Class XB visa includes a proposal by an approved proposing organisation, and who are assessed as otherwise meeting the criteria for that visa, must pay the second instalment of the VAC before the visa can be granted.

 

Item [39] - Clause 204.111 of Schedule 2

 

This item inserts a definition of 'approved proposing organisation' and a note into Part 204 of Schedule 2 to the Principal Regulations.

 

This definition provides that approved proposing organisation means an organisation in relation to which the following requirements are met:

 

 

The new note under this amendment provides that, when this subclause commenced on 1 June 2013, these requirements were part of the Department's Pilot program.

 

The purpose of this amendment is to provide the definition of an approved proposing organisation.  An approved proposing organisation may propose a person for entry to Australia under the Pilot program.

 

Item [40] - Subclause 204.211(1) of Schedule 2

 

This item omits the phrase 'The applicant:' in subclause 204.211(1) of Part 204 of Schedule 2 to the Principal Regulations and substitutes that phrase with 'If the application does not include a proposal by an approved proposing organisation, the applicant:'.

 

The purpose of this amendment is to ensure that subclause 204.211(1) of Schedule 2 applies only to applicants who make an application for a Class XB visa which does not include a proposal by an approved proposing organisation.  This amendment is also necessary to distinguish between the criteria that must satisfied at the time of application in subclause 204.211(1) and the criteria in new clause 204.211A, which inserts the criteria that must be satisfied at the time of application for a Class XB visa under the Pilot program.

 

Item [41] - After clause 204.211 of Schedule 2

 

This item inserts a new clause 204.211A into Part 204 of Schedule 2 to the Principal Regulations.

 

Clause 204.211A sets out the criteria that applicants for a Class XB visa must satisfy at the time of application if they make an application which includes a proposal by an approved proposing organisation.

 

Clause 204.211A provides that, if the application includes a proposal by an approved proposing organisation:

 

*         the applicant is a female person who is subject to persecution, or registered as being of concern to the United Nations High Commissioner for Refugees, and is living in a country other than the applicant's home country; and

*         the proposal is not made on behalf of another person who is mentioned in subregulation 2.07AM(5); and

*         the applicant is still proposed by the approved proposing organisation.

 

New paragraph 204.211A(a) replicates the criteria for the grant of a Subclass 204 (Woman at risk) visa ('Subclass 204 visa') which is that the applicant is a female person who is subject to persecution, or registered as being of concern to the United Nations High Commissioner for Refugees and is living in a country other than the applicant's home country.

 

New paragraph 204.211A(b) prevents the grant of a Class XB visa under the Pilot program if it was made on behalf of an irregular maritime arrival (see subregulation 2.07AM(5)).  This is consistent with government policy to prevent irregular maritime arrivals who meet the definition of subregulation 2.07AM(5) from proposing visa applicants for entry to Australia under the Humanitarian Program.

 

New paragraph 204.211A(c) reflects the fact that a proposal is made before an application for a Class XB visa under the Pilot program is made and that the proposal must continue to be in place at time of application.

 

The purpose of this amendment is to provide for criteria that an applicant for a Subclass 204 visa must satisfy at time of application where the application includes a proposal by an approved proposing organisation.  These criteria are alternative to the criteria in clause 204.211 which apply to an applicant who makes an application for a Class XB visa that does not include a proposal by an approved proposing organisation.

 

Item [42] - Clause 204.221 of Schedule 2

 

This item repeals and substitutes clause 204.221 of Part 204 of Schedule 2 to the Principal Regulations.

 

Clause 204.221 provided that the applicant continues to satisfy the criterion in clause 204.211.

 

Substituted clause 204.221 provides that:

 

*         if the criteria in clause 204.211 apply to the applicant, the applicant continues to satisfy the criteria; and

*         if the criteria in clause 204.211A apply to the applicant, the applicant continues to satisfy the criteria.

 

The purpose of this amendment is to ensure that, if an applicant were to make an application that includes a proposal by an approved proposing organisation, he or she would be required to continue to satisfy, at time the application is decided, the criteria set out in new clause 204.211A.  All other applicants are required to continue to satisfy the existing criteria.  This amendment is consequential to the insertion of new clause 204.211A into Part 204 of Schedule 2 to the Principal Regulations.

 

Item [43] - Clause 204.224 of Schedule 2

 

This item omits the phrase 'The Minister is satisfied' in clause 204.224 of Part 204 of Schedule 2 to the Principal Regulations and substitutes that phrase with the phrase '(1) If the application does not include a proposal by an approved proposing organisation, the Minister is satisfied'.

 

Clause 204.224 provides for the factors that the Minister must take into account when considering if there are compelling reasons for granting the applicant a permanent visa.  This amendment is consequential to new subclause 204.224(2), which applies to visa applicants applying for a Class XB visa under the Pilot program.  This amendment clarifies that the existing visa criteria in renumbered subclause 204.224(1) do not apply to those applicants.

 

The purpose of this amendment is to clarify to which applicants the criteria in renumbered subclause 204.224(1) apply.

 

Item [44] - At the end of clause 204.224 of Schedule 2

 

This item adds a new subclause 204.224(2) in clause 204.224 of Part 204 of Schedule 2 to the Principal Regulations.

 

New subclause 204.224(2) provides that, if the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:

 

 

These factors substantially replicate the existing factors, with the only difference being that, for applicants for a Class XB visa under the Pilot program, the Minister is to consider the capacity of the approved proposing organisation to provide for the permanent settlement of that particular applicant in Australia, as distinct from applicants in general.

 

The purpose of this amendment is to set out a criterion that must be satisfied at the time of decision by an applicant for grant of a Class XB visa under the Pilot program.

 

Item [45] - Paragraph 204.311(a) of Schedule 2

 

This item repeals and substitutes paragraph 204.311(a) of Part 204 of Schedule 2 to the Principal Regulations.

 

Paragraph 204.311(a) provided that the applicant is a member of the family unit of, and made a combined application with, a person who meets, or has met, the requirements of paragraph 204.211(1)(a).  Paragraphs 204.211(1)(a) applies to applicants for a Class XB visa who are not seeking family reunion through the Humanitarian program.

 

Substituted paragraph 204.311(a) replicates the criterion in previous paragraph 204.311(a) but adds the alternative criterion that the applicant is a member of the family unit of, and has made a combined application with, a person who meets, or has met, the requirements of paragraph 204.211(1)(a) or 204.211A(a) (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and is a female person who is subject to persecution, or registered as being of concern to the United Nations High Commissioner for Refugees, and is living in a country other than their home country).

 

The purpose of this amendment is to enable members of a family unit of an applicant who satisfies the primary criteria for the grant of a Subclass 204 visa under the Pilot program to satisfy the secondary criteria at the time of application.

 

Item [46] - Paragraph 204.321(a) of Schedule 2

 

This item repeals and substitutes paragraph 204.321(a) of Part 204 of Schedule 2 to the Principal Regulations.

 

Paragraph 204.321(a) provided that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of paragraph 204.211(1)(a)), is the holder of a Subclass 204 visa.

 

Substituted paragraph 204.321(a) replicates the criterion in previous paragraph 204.321(a) but adds the alternative criterion that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria and, in particular, having met the requirements of paragraph 204.211(1)(a) or 204.211A(a), is the holder of a Subclass 204 visa (that is, a person whose application for a Class XB visa includes a proposal by an approved proposing organisation and is a female person who is subject to persecution, or registered as being of concern to the United Nations High Commissioner for Refugees, and is living in a country other than their home country).

 

The purpose of this amendment is to ensure that the criterion in paragraph 204.321(a) extends to applicants who seek to satisfy the secondary criterion at the time of decision for a Subclass 204 visa, in circumstances where the person they are seeking to make a combined application with made an application for a Class XB visa that included a proposal by an approved proposing organisation.

 

Item [47] - At the end of clause 204.411 of Schedule 2

 

This item inserts a new note into clause 204.411 of Part 204 of Schedule 2 to the Principal Regulations.

 

This amendment provides that, if the application includes a proposal by an approved proposing organisation, the second instalment of the visa application charge must be paid before the visa can be granted.

 

The purpose of this amendment is to note that applicants whose application for a Class XB visa includes a proposal by an approved proposing organisation, and who are assessed as otherwise meeting the criteria for that visa, must pay the second instalment of the VAC before the visa can be granted.

 

Item [48] - Schedule 13, after Part 13 of Schedule 13

 

This item inserts a new Part 14 into Schedule 13 to the Principal Regulations.

 

The purpose of this amendment is to insert a new clause 1401, which provides that the amendments of the Regulations made by Schedule 1 to the Migration Amendment Regulation 2013 (No. 2) apply in relation to an application for a visa made on or after 1 June 2013.


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