ATTACHMENT A

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration 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 Migration Act.

 

In addition, the following provisions of the Migration Act may apply:

 

*         subsection 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 35A, 37, 37A or 38B but not by sections 33, 34, 35, 38 or 38A of the Migration Act).

 

*         Subsection 46(2) provides that, subject to subsection 46(2A), the regulations prescribe a class of visas. An application for such a visa is valid if it made for the purposes of subsection 46(2) and, under the regulations, the application is taken to have been validly made;

 

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

 

*         paragraph 46(4)(a) provides in part that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application;

 

*         subparagraph 65(1)(a)(ii) provides that the regulations prescribe criteria, other than health criteria, that must be satisfied before the Minister is to grant a visa; and

 

*         section 505 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:

o   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; or

§  make an assessment of a specified matter; or

§  make a finding about a specified matter; or

§  make a decision about a specified matter; and

o   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;

 

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Citizenship Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Citizenship Act.

 

In addition, the following provisions of the Citizenship Act may apply:

 

*         paragraph 46(1)(d), which provides that an application made under a provision of that Act must be accompanied by the fee (if any) prescribed by the Australian Citizenship Regulations 2007 (the Citizenship Regulations); and

 

*         subsection 46(3), which provides that the Citizenship Regulations may make provision for and in relation to the remission, refund or waiver of any fees of a kind referred to in paragraph 46(1)(d) of the Citizenship Act.

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

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

 

Migration Legislation Amendment (2015 Measures No.1) Regulation 2015

 

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.

 

Overview of the Legislative Instrument - Schedule 1

 

Schedule 1 to this Legislative Instrument repeals clause 228 in Subclasses 570 to 575 and 580 and clause 226 in Subclass 576 of Schedule 2 to the Migration Regulations 1994 (the Migration Regulations).

 

Currently, these clauses only permit spouses, de facto partners or dependent relatives of a diplomatic or consular representative to apply for their student visa or student guardian visa onshore if the relative has completed or is about to complete their official posting in Australia.

 

The relevant clauses provide:

 

If the application was made in Australia and, at the time of application, the applicant was in Australia as the spouse, de facto partner or dependent relative of a diplomatic or consular representative of a country other than Australia:

(a)  that representative has completed, or is about to complete, an official posting in Australia; and

(b)  the Foreign Minister recommends the grant of the visa.

 

These clauses mean that where the diplomatic or consular representative has not completed or is not about to complete their official posting, their spouse, de facto partner or dependent relatives must travel outside Australia to lodge their student or student guardian visa applications. In addition, clause 228 also requires them to provide evidence that the Foreign Minister recommends the grant of the visa (usually in the form of a no-objection letter from Department of Foreign Affairs and Trade (DFAT)).

 

Repealing these clauses will allow spouses, de facto partners and dependent relatives of diplomatic or consular representatives to apply for a student visa or a student guardian visa in Australia at any time during that representative's posting period. The requirement for the Foreign Minister to provide approval for grant of the visa will also be removed.

 

The amendment will relieve family members of diplomatic or consular representatives of the inconvenience, cost and time of having to travel overseas in order to apply for a student visa or a student guardian visa and reduce the regulatory burden on the department and DFAT.

 

Human rights implications

The amendment has been assessed against the seven core international human rights treaties that comprise Australia's human rights obligations. The amendment does not engage any human rights.

 

As a result of repealing the clauses, prospective international students who are the spouse, de facto partner or dependent relative of a diplomatic or consular representative will be able to apply for a student visa overseas or within Australia, and will no longer be required to travel outside Australia to apply. The amendment reduces any current inconvenience experienced by persons applying for a student visa as a result of the clauses and does not restrict or interfere with any human rights.

 

Conclusion

The amendments do not limit any of the rights or freedoms expressed in Australia's international obligations and are compatible with human rights for the reasons outlined above.

 

Overview of the Legislative Instrument - Schedule 2

 

Pursuant to both the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, Australia is required to facilitate the entry of private domestic staff of certain diplomatic and consular officials. Members of the Diplomatic and Consular Corps and certain other foreign officials posted to Australia may be eligible to sponsor a private domestic worker to enter Australia to work in their household under Subclass 403 (Temporary Work (International Relations)) visa (Subclass 403 visa) in the Domestic Worker (Diplomatic or Consular) stream. DFAT determines whether a posted diplomat or consular officer is eligible to employ a domestic worker under the Diplomatic Privileges and Immunities Act 1967 and the Consular Privileges and Immunities Act 1972. In the past, domestic staff generally worked for one diplomat and departed when that diplomat's posting expired. As such, employment conditions were checked once on initial entry.

 

However, domestic workers are now more likely to work for multiple employers in Australia. There have also been increased numbers of cases of exploitation, significant underpayment and possible human trafficking offences detected in this visa caseload/cohort.

Currently, when applicants for Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream apply from outside Australia, it is a visa requirement that applicants be remunerated according to relevant Australian wages and working conditions. Specifically, subparagraph 403.243(c) of Schedule 2 to the Migration Regulations requires that "if the application is made outside Australia, the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards". There is no similar requirement applicable, however, to applicants lodging in Australia to be remunerated according to relevant Australian wages and working conditions.

 

Schedule 2 to this Legislative Instrument will amend subparagraph 403.242 of Schedule 2 to the Migration Regulations to provide, similar to current subparagraph 403.243 applicable to offshore applicants, to require applicants lodging in Australia to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards.

 

Human rights implications

The amendment engages the following human rights:

 

Right to work and rights at work

All people working in Australia are entitled to basic rights and protections in the workplace. This right also extends to foreign workers, workers who are not citizens or permanent residents of Australia. They are also entitled to basic rights and protections in the workplace.

 

The Fair Work Act 2009 (the Fair Work Act) is the principal Commonwealth legislation dealing with the right to work and rights at work. The Fair Work Act deals with remuneration (including equal remuneration for men and women), hours of work, leave, holidays, unfair dismissal, and the terms and conditions that may apply to particular types of workers, such as outworkers and pieceworkers.

 

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to the enjoyment of just and favourable conditions of work. This right encompasses a number of elements, including "remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work" (ICESCR, Article 7(a)(i)); "safe and healthy working conditions" (ICESCR, Article 7(b)); and "rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays" (ICESCR, Article 7(d)).

 

This amendment engages Article 7 of the ICESCR and protects both the right to work and right to fair work conditions for domestic workers to be properly remunerated by their employer. It will do so by removing a discrepancy between offshore and onshore applications and require employers of applicants from both streams, to be employed or engaged in accordance with Australian work standards provided for under Australian legislation and awards. In turn, this will improve the integrity of the current programme by removing any indirect or distorted incentives for proposed employers to favour one stream of applicants over another, based on their employment conditions in Australia. Rather, this amendment will ensure all domestic workers are not exploited by their employers and is therefore consistent with Article 7 of the ICESCR.

 

Prohibition against slavery and forced labour

Article 8(3)(a) of the International Covenant on Civil and Political Rights (ICCPR) provides that '[n]o one shall be required to perform forced or compulsory labour.' Australia is therefore obliged to ensure that no one within its jurisdiction is subject to slavery (i.e. where powers attaching to the right of ownership are exercised) or forced labour (i.e. a person is compelled to work under the threat of penalty in work in which the person has not offered to perform voluntarily).

 

This amendment also engages Article 8(3)(a) of the ICCPR on the prohibition on slavery and forced labour by ensuring employers of domestic workers do not abuse domestic workers through underpayment or non-payment of wages for their services. In addition, this amendment will establish a mechanism for domestic workers to enforce the conditions of their employment in accordance with Australian workplace relations legislation and awards. As such, this amendment is consistent with Article 8(3)(a) of the ICCPR.

 

Conclusion

The amendments are compatible with human rights as it does not raise any human rights issues.

 

Overview of the Legislative Instrument - Schedule 3

 

Schedule 3 to the Legislative Instrument will prevent people from staying in Australia longer than 12 consecutive months without demonstrating exceptional circumstances as the holder of one or more visitor visas; or a Subclass 417 (Working Holiday) visa; or a Subclass 462 (Work and Holiday) visa or a bridging visa. Bridging visas will be included in the current regulation 600.215 to maintain both the intent and integrity of the Visitor visa programme.

 

The intention of the Subclass 600 (Visitor) visa is that applicants genuinely intend only to visit Australia temporarily. For this reason, in accordance with current regulation 600.215 of the Migration Regulations, exceptional circumstances must exist for granting the visitor visa if the period of authorised stay would exceed 12 consecutive months as the holder of:

(a)      one or more visitor visas; or

(b)      a Subclass 417 (Working Holiday) visa; or

(c)      a Subclass 462 (Work and Holiday) visa.

 

The former Migration Review Tribunal, now Migration and Refugee Division of the Administrative Appeals Tribunal, in cases where the applicant has held a bridging visa while waiting for a decision, has taken the approach that a bridging visa "breaks" the 12 consecutive months referred to in regulation 600.215 and have remitted decisions to the department.

 

This means that clients in these circumstances are not required to demonstrate exceptional circumstances for the granting of a visitor visa and may result in undermining both the integrity and intention of the visitor visa programme. It is entirely appropriate that applicants who have spent 12 consecutive months as the holder of the above visas and/or a bridging visa are required to demonstrate exceptional circumstances for the granting of a visitor visa.

 

Exceptional circumstances may include:

*         the death, serious illness or serious medical condition of a member of the visa applicant's close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support;

*         a change in the applicant's circumstances (or the circumstances of an Australian resident) that:

o   could not have been anticipated at the time their visitor visa was granted; and

o   is beyond the visa applicant's control; and

o   where not granting a visa would cause significant hardship to an Australian resident or citizen.

 

Human rights implications

This amendment does not engage any of the applicable rights or freedoms.

 

Conclusion

The amendments are compatible with human rights as it does not raise any human rights issues.

 

Overview of the Legislative Instrument - Schedule 4

 

Schedule 4 to this Legislative Instrument amends the visa framework to support victims of human trafficking, slavery and slavery-like practices who would be in danger if they returned to their home country as a result of their participation in the administration of criminal justice in Australia. That is, it widens the scope of circumstances under which the Attorney General or a person authorised by the Attorney General can issue certificates to trafficked people to be eligible for a Subclass 852 (Referred Stay (Permanent)) visa where they had participated in the criminal justice process.

 

The amendment lowers the threshold of eligibility for victims of human trafficking to be issued an Attorney-General's certificate for a permanent Referred Stay visa. Currently, regulation 2.07AK provides for very specific circumstances in which trafficked people can be issued a certificate to be eligible for a Subclass 852 (Referred Stay (Permanent)) visa. The lowered threshold allows a person who has made a contribution to, and cooperated closely with, an investigation in relation to a person who was alleged to have engaged in human trafficking, slavery or slavery-like practices to be considered for a certificate. The amendment also requires the Attorney-General or person authorised by the Attorney-General to take into account information provided by a member of the Australian Federal Police of equivalent or higher rank to a Commander before issuing an Attorney-General's certificate.

 

Subregulations 2.07AK (2)-(5) have also been restructured to both enable these changes and improve readability. This restructure does not affect the legal intent of the provisions.

 

Human rights implications

This regulation amendment positively engages the following human rights:

 

Rights to liberty, freedom from slavery and forced labour

Article 8 of the International Covenant on Civil and Political Rights (ICCPR) relevantly provides that:

 

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour;

...

 

The amendment to regulation 2.07AK promotes Article 8 by providing protection to victims of human trafficking where they contribute to and cooperate closely with an investigation into the perpetrator(s) of the offences. This also assists to prevent the offences from occurring again in the future.

 

Article 9(1) of the ICCPR relevantly provides that:

 

Everyone has the right to liberty and security of person.

 

The amendment also promotes this right by protecting persons who have been deprived of their liberty by perpetrator(s) of human trafficking, slavery or slave-like practices, and impliedly condoning that conduct.

 

Right to protection from exploitation, violence and abuse

The right to protection from exploitation, violence and abuse is contained in article 19(1) of the Convention on the Rights of the Child (CRC), article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and article 16(1) of the Convention on the Rights of Persons with Disabilities (CRPD).

 

Article 19(1) of the CRC provides that:

 

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

 

Article 6 of the CEDAW provides that:

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

 

Article 16(1) of the CRPD provides that:

 

1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

 

The amendments to regulation 2.07AK promote these rights by broadening the scope of circumstances a trafficked person can be issued a certificate to be eligible for a Subclass 852 (Referred Stay (Permanent)) visa.

 

Conclusion

Insofar as they engage human rights, the amendments to regulation 2.07AK are compatible with those human rights because they serve to promote them.

 

Overview of the Legislative Instrument - Schedule 5

 

Schedule 5 to the Legislative Instrument amends regulation 417.211(5) to ensure that the three months' specified work, performed by participants in Australia's second Subclass 417 (Working Holiday) visa (Subclass 417 visa) initiative to acquire eligibility for a second visa, is appropriately remunerated in accordance with relevant Australian legislation and awards.

 

Recent analysis indicates there is an increasing trend of second Subclass 417 visa participants being willing to accept either underpaid or non-paid workplace arrangements with Australian employers, in order to complete the requisite three months specified work in regional Australia needed to acquire eligibility for a second visa. This is contributing to incidents of their exploitation in the workplace.

 

The amendment also makes clear that 'specified work' must be undertaken on a full-time equivalent basis. This amendment reflects current departmental practice of assessing the 88 day 'specified work' requirement on a full-time equivalent work basis and thus provides legislative clarity for participants.

 

These amendments will only apply to specified work performed by the applicant for a second Subclass 417 visa from the legislative instrument date of commencement onwards. This ensures equity for those participants who have undertaken their specified work prior to the date of commencement but who apply for their visa after the date of commencement by allowing their specified work to remain eligible for the purposes of their second Subclass 417 visa application.

 

Human rights implications

Schedule 5 to the Legislative Instrument positively engages and supports Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Article 6 of ICESCR sets out:

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

 

Article 7 of ICESCR sets out:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

 

The amendment operates to support and protect the right of participants in the second Subclass 417 visa programme to be appropriately remunerated for the work they perform in accordance with Australian domestic law.

 

Conclusion

The amendments are compatible with human rights as it supports the human rights of participants in the second Subclass 417 visa programme.

 

Overview of the Legislative Instrument - Schedule 6

 

Schedule 6 to the Legislative Instrument introduces the requirement of the fraud-related Public Interest Criterion (PIC) 4020 to six additional visa subclasses.

 

PIC 4020

PIC 4020 was introduced to the Migration Regulations in 2011 to strengthen the integrity of Australia's immigration programme by allowing the department to respond to fraud detected in visa applications. PIC 4020(1) provides a ground to refuse the grant of a visa that requires PIC 4020 to be satisfied where there is evidence that the visa applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

*         the application for the visa; or

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

 

Under PIC 4020(2), the Minister must also be satisfied that during the period starting 3 years before the application was made, and ending when the Minister makes a decision to grant or refuse to grant the visa, the applicant and each member of the applicant's family unit has not been refused a visa because of a failure to satisfy the above criteria. This clause does not, however, apply to the applicant if he or she was under 18 at the time the application for the refused visa was made (PIC 4020(2AA) refers).

 

The requirements of PIC 4020(1) and (2) may be waived if the Minister is satisfied that compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interest of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justify the granting of the visa.

 

On 22 March 2014, an amendment to the Migration Regulations introduced an identity requirement into PIC 4020 so that:

*         an applicant must satisfy the Minister as to his or her identity (PIC 4020(2A)) ; and

the Minister must be satisfied that during the period starting 10 years before the application was made, and ending when the Minister makes a decision to grant or refuse to grant the visa, neither the applicant nor any member of the applicant's family unit has been refused a visa because of a failure to satisfy the Minister of their identity (PIC 4020(2B)).

 

A waiver of the requirements in PIC 4020(2A) and (2B) is not available, but the requirement at PIC 4020(2B) does not apply to the applicant if he or she was under 18 when the application for the refused visa was made (PIC 4020(2BA) refers). This provision, and that at PIC 4020(2AA), intends to prevent minors from being disadvantaged by the fraudulent actions of their parents or guardians.

 

Amendments extending the application of PIC 4020

These amendments seek to extend the application of PIC 4020 to the following visas:

*         Subclass 124 (Distinguished Talent) visa (granted outside Australia);

*         Subclass 858 (Distinguished Talent) visa (granted in Australia);

*         Subclass 405 (Investor Retirement) visa;

*         Subclass 410 (Retirement) visa;

*         Subclass 771 (Transit) visa; and

*         Subclass 988 (Maritime Crew) visa.

 

This will enable the Minister (or a delegate) to refuse to grant a visa where fraud or identity issues are detected in the visa application. This will further strengthen the integrity and protection of Australia's borders. It will ensure that any fraud detected in these visa applications will be deterred in further visa subclasses, reducing the ability of fraudulent applicants to 'shop around' for a visa that is not subject to PIC 4020 once they have been refused a visa on the basis of PIC 4020 and are consequently subject to an exclusion period (either under PIC 4020(2) or (2B)).

 

This change does not impact the refugee and humanitarian protection visa caseloads because PIC 4020 is not required to be satisfied for those visas.

 

Human rights implications

Australia's obligations under the seven core international treaties are only engaged where the applicant is within Australia's jurisdiction.

 

For those applicants within Australia's jurisdiction, the most relevant human rights requiring consideration are the best interests of the child (Articles 3 and 10 of the Convention on the Rights of the Child (CROC)) and the principle of family unity (Articles 17 and 23 of the ICCPR).

 

International Covenant on Civil and Political Rights

Article 17(1) of the ICCPR prohibits the arbitrary or unlawful interference with a person's privacy, family, home or correspondence and articulates the right to protection of the law in this respect.

 

Article 23(1) of the ICCPR states that the family is the natural and fundamental group unit in society and as such, is entitled to protection by society and the State. These articles could in certain circumstances be engaged by the 'exclusion period' which appears at PIC 4020(2) and (2B).

 

However, Articles 17(1) and 23(1) do not guarantee a right of entry or residence in Australia. Further, these articles will not be engaged where the applicant is offshore and has no family in Australia (although it may be engaged with respect to an offshore applicant's relatives in Australia).

 

The amendments are appropriate as they seek to address the department's concerns regarding the increase of incidents and growing sophistication of fraud. The measures will have a lawful basis in domestic law by virtue of the amendment to the Migration Regulations. Further, the proposed changes cannot be said to be arbitrary as they seek to implement the legitimate objective of maintaining the integrity of Australia's migration program and will have no impact on applicants who do not use fraudulent means to apply for these visas. To that end, the proposed amendments may be said to be reasonable and proportionate to the objective of maintaining the integrity of the migration program.

 

Convention on the Rights of the Child

The relevant provisions of the CROC are Articles 3 and 10. Article 3(1) of the CROC states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

 

Similar to the ICCPR, the rights of children under the CROC are only engaged where a child is within Australia's jurisdiction. In relation to Article 3(1), it is noted that minors are exempt from the exclusion periods in PIC 4020(2) and (2B) should their visa applications be refused for failing to satisfy PIC 4020. That is, minors will not be prevented from lodging future visa applications (either as a minor or when they become adults).

 

Further, PIC 4020(4) provides a waiver of PIC 4020(1) and (2) where compassionate and compelling circumstances exist. This allows a decision maker to take into consideration the best interests of the child, though a child's best interests can be balanced against countervailing primary considerations including the integrity of Australia's family migration program as the best interest of the child are a, not the, primary consideration.

 

Article 10(1) of the CROC states that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. Article 10 does not amount to a right of a child to bring their parent/s to Australia for the purposes of reunification, but establishes expectations with respect to applications of that nature. The application of PIC 4020 to additional visa subclasses will provide a clear method by which a delegate may refuse to grant a visa where evidence of fraud exists. This will not impact on legitimate applications, therefore supporting the expeditious finalisation of visa applications. The existence of the waiver may also allow for compassionate circumstances to be taken into consideration and, as such, supports the obligation for the visa application to be dealt with in a humane manner.

 

Conclusion

The amendments are compatible with human rights as it does not raise any human rights issues.

 

Overview of the Legislative Instrument - Schedule 7

 

Schedule 7 to the Legislative Instrument addresses amendments to the Migration Regulations, which were made on 18 April 2015 by Schedule 2 to the Migration Amendment (2015 Measures No. 1) Regulation 2015 (the April 2015 Regulation). These amendments provided that an English language test must have been conducted within three years before an invitation to apply for a visa was received in order to obtain certain points that go toward visa eligibility. The amendment was applied to all unfinalised applications. However, there are still unfinalised applications from pre-July 2012 before the invitation scheme was created. Such persons could never meet the amended provision as they did not receive an invitation. This effect was not intended.

 

Amendment to fix unintended consequences in regulations made on 18 April 2015

These proposed regulations would amend the application provision so that the amendments made on 18 April 2015 only apply to applications made on or after 1 July 2012 but that are not yet finally determined. This would preserve the old regulations for applications made pre-July 2012. It is proposed that this amendment commence retrospectively on 18 April 2015 to rectify the error made at that time and ensure that any visas granted during that period were granted lawfully.

 

Second error in regulations made on 18 April 2015

Schedule 7 to the April 2015 Regulation also inserted a provision which attempted to isolate a certain cohort of applicants from the application of the amendments (subclause 4102(2)). It was believed that this cohort might be disadvantaged by the April 2015 amendments. The transitional provision contained an error which reversed the intention of the provision, (paragraph 4102(2)(b) says "before the invitation was issued" instead of "after the invitation was issued") and this would remove all applicants from the application of the amendments). Further advice confirmed that in fact the cohort in question would not have been disadvantaged by the amendments in any case because the relevant visa criteria would have excluded any person in this situation from being eligible for the grant of a visa.

 

Amendment to fix second error

The paragraph is being repealed, also retrospectively, from immediately after the commencement of the April 2015 provisions. Retrospective commencement would ensure that no applicants would miss out on the benefits of the 18 April 2015 amendments.

 

A careful consideration of each item affected by the retrospective change has confirmed that there would be no disadvantage to any person by the retrospective commencement of the changes.

 

Human rights implications

Schedule 7 does not engage any of the applicable rights or freedoms.

 

The effect of section 2 of the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 (the Amending regulation) is that each provision of Schedule 7 to the Regulation is taken to commence immediately after the commencement of Schedule 2 to the April 2015 Regulation. The retrospective commencement does not adversely affect the rights of any applicants rather it ensures that provisions made on 18 April 2015 which were beneficial to some applicants will operate as originally intended.

 

Conclusion

The amendment is compatible with human rights as it does not raise any human rights issues.

 

Overview of the Legislative Instrument - Schedule 8

 

Regulation 12A of the Australian Citizenship Regulations 2007 (the Citizenship Regulations) sets out among other things, in which foreign currencies and countries a citizenship application fee may be paid and how the exchange rate is to be calculated.

 

The acceptable foreign currencies and countries are set out in legislative instruments made under regulations 5.36(1) and (1A) of the Migration Regulations. In order to facilitate the lawful collection (and refund where appropriate) of citizenship application fees in foreign currencies, the Citizenship Regulations incorporate by reference instruments made under the Migration Regulations in relation to foreign currencies and countries.

 

The relevant instruments, Places and Currencies for Paying of Fees and Payment of Visa Application Charges and Fees in Foreign Currencies, are updated in January and July each year and are given a new instrument number each time.

 

Consequently, to ensure that citizenship application fees can continue to be paid in foreign currencies and countries, sub-regulation 12A(7) of the Citizenship Regulations must be amended to specify the updated instrument numbers.

 

The updating of the instrument numbers is the only change and is merely technical in nature. There is no change to the substantive content of the instrument.

 

Human rights implications

The amendment has been assessed against the seven core international human rights treaties and does not engage any of the applicable rights or freedoms.

 

Conclusion

This amendment is compatible with human rights as it does not raise any human rights issues.

 

Overview of the Legislative Instrument - Schedule 9

 

Schedule 9 to this Legislative Instrument amends Schedule 3 to the Citizenship Regulations to adjust the fees payable for certain citizenship applications.

 

Section 54 of the Australian Citizenship Act 2007 (the Citizenship Act) provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Citizenship Act to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Citizenship Act.

 

Paragraph 46(1)(d) of the Citizenship Act provides that an application made under a provision of the Citizenship Act must be accompanied by the fee (if any) prescribed by the regulations.

 

Regulation 12A of the Citizenship Regulations sets out matters relating to the fees payable for citizenship applications.

 

Schedule 3 of the Citizenship Regulations sets out the fee payable for each type of citizenship application.

 

The Australian Government Cost Recovery Guidelines (in particular, see Resource Management Guide No. 304) promote consistent, transparent and accountable charging for government activities and support the proper use of public resources. The Government's overarching cost recovery policy is that, where appropriate, non-government recipients of specific government activities should be charged some or all of the costs of those activities. The types of activities that are most appropriate to cost recover are considered by the Government on a case-by-case basis. Partial cost recovery, which occurs when less than the full cost of a government activity is recovered, may be appropriate in some circumstances where:

*         charges are being 'phased in';

*         full cost recovery would be inconsistent with community service obligations endorsed by the Australian Government;

*         the Australian Government has made an explicit policy decision to charge for part of the costs of an activity.

 

Under the cost recovery guidelines departments are required to review cost recovery arrangements at least every four years; more frequently if there are significant shifts in activities resulting in changes to costs. An internal review of the costs associated with the Citizenship programme in 2014 revealed that its costs were under-recovered by approximately $7.3m. This reflected with the Government's policy at the time of subsidising costs associated with two types of citizenship applications. A further internal review conducted in 2015 identified that this under-recovery was not in fact confined to the two types of citizenship applications, but was experienced across the majority of application types. This finding came at a similar time to the Government's decision to no longer subsidise Citizenship applications, in line with the new cost recovery policy.

 

Consistent with the cost recovery policy, from 1 January 2016 the Australian Government will recover the full costs associated with the processing of certain types of applications made under the Citizenship Act. This Legislative Instrument implements this policy by amending the fee payable under Schedule 3 of the Citizenship Regulations (Schedule 3) for the relevant types of applications, as listed in the following table.

 

 

Items in Schedule 3 that provide for a concessional, reduced or nil fee are not being amended as the Government decided not to increase the amounts recovered against these items.

 

Concessional fees are payable for Schedule 3 Items 9, 10, 13, 14 and 15C. These concessional fees reduce the financial barrier to acquiring citizenship that may be experienced by applicants for citizenship by conferral who suffer from permanent or long-term financial disadvantage, as evidenced by their holding of a pensioner concession card or health care card endorsed with a prescribed benefit code.

 

Reduced fees are payable for applications for citizenship by descent and applications for citizenship by adoption in accordance with the Hague Convention on International Adoption (Schedule 3 Items 1 and 3 respectively) made by second and subsequent siblings at the same time as the first sibling. These reduced fees recognise that there are some processing efficiencies associated with these types of applications when lodged at the same time.

 

Nil fees are provided for in Schedule 3 Items 5, 6, 7, 7A, 8, 14B, 16, 19 and 19A. These nil fees cater for the following specific circumstances:

*         applications for citizenship by conferral by people who:

o   have served a prescribed time in the Australian Defence Forces; or

o   migrated to Australia under the UK and Malta child migration scheme; or

o   were previously refused citizenship because they did not meet the residence requirement and have lodged a new application within three months of becoming able to meet the residence requirement; or

o   have applied under the statelessness provision in subsection 21(8); or

o   are under the age of 16 and applying at the same time and on the same form as a responsible parent;

*         applications for resumption of citizenship by people under the age of 16 who apply at the same time and on the same form as a responsible parent;

*         applications for a notice of evidence of Australian citizenship by people:

o   under the age of 16 who apply at the same time and on the same form as an application for citizenship by conferral or an application for resumption of citizenship; or

o   who seek to replace a notice of evidence of Australian citizenship that was lost, destroyed or damaged due to a natural disaster.

 

Human rights implications

This Legislative Instrument has been assessed against the seven core international human rights treaties. By increasing the fee payable for certain types of citizenship applications, this Legislative Instrument may indirectly engage the rights to acquire or change a nationality under:

*         Article 18 of the Convention on the Rights of Persons with Disabilities;

*         Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women;

*         Article 7 of the Convention of the Rights of the Child; and

*         Article 24 of the International Covenant on Civil and Political Rights.

 

To the extent that the Legislative Instrument may operate to limit a right to acquire or change a nationality, that limitation is allowable as it is:

*         in pursuit of a legitimate objective;

*         rationally connected to the objective; and

*         a proportionate way of achieving the objective.

 

The objective of the Legislative Instrument is to implement the Government policy of cost recovery for certain services provided under the Citizenship Act. The Legislative Instrument is rationally connected to the objective of cost recovery as it amends Schedule 3 of the Citizenship Regulations, which is the only mechanism by which the cost of an application made under the Citizenship Act can be recovered from the applicant.

 

Schedule 9 of the Legislative Instrument is a proportionate way of achieving the objective as it assigns a fee for each application that is proportionate to the overall cost of processing that type of application. This has been achieved by dividing the actual costs for a financial year allocated to the particular citizenship application item in Schedule 3 by the associated volumes to determine the new fee. The amended fees will address the current shortfall in cost recovery for those types of application.

 

Conclusion

The amendments are compatible with human rights as any limitation of human rights is in pursuit of a legitimate objective, rationally connected to the objective and a proportionate way of achieving the objective.

 

 

The Hon Peter Dutton

Minister for Immigration and Border Protection

 

ATTACHMENT C

 

Details of the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015

 

Section 1 - Name

 

This section provides that the title of the Regulation is the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015.

 

Section 2 - Commencement

 

Subsection 2(1) provides that each provision of the Regulation specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

The table states that Sections 1 to 4 and anything in this instrument not elsewhere covered by this table commence the day after this instrument is registered.

 

The table states that Schedules 1, 2, 3, 4 and 6 and item 2 of Schedule 10 to the Regulation commence on 21 November 2015.

 

The table states that Schedules 5 to the Regulation commences on 1 December 2015.

 

The table states that Schedules 8 and 9 and item 1 of Schedule 10 to the Regulation commence on 1 January 2016.

 

The table states that Schedule 7 to the Regulation commences immediately after the commencement of Schedule 2 to the Migration Amendment (2015 Measures No. 1) Regulation 2015, which commenced on 18 April 2015. Schedule 8 to the Regulation commences retrospectively for the following reasons:

 

*         Item 1 of Schedule 7 - The amendments made on 18 April 2015 provided that an English language test must have been conducted within three years before an invitation to apply for a visa was received in order to obtain certain points that go toward visa eligibility. Subclause 4102(1) ensured that the amendments applied to all unfinalised visa applications as this was beneficial to applicants. However, there are still unfinalised applications from pre-July 2012 before the invitation scheme was created. Such persons could never meet the amended provision as they did not receive an invitation. This effect was not intended. The regulations amend the application provision so that the amendments made on 18 April 2015 only apply to visa applications made on or after 1 July 2012 that are not yet finally determined. This preserves the benefit in the old regulations for applications made pre-July 2012 and preserves the benefit in the amendments for applications made post 1 July 2012. This amendment commences retrospectively on 18 April 2015 to restore the intended position and ensure that no one is disadvantaged;

 

*         Item 2 of Schedule 7 - Subclause 4102(2) was drafted incorrectly and it inadvertently obviates the effect of subclause 4102(1). The amendment repeals this clause to (in conjunction with the amendment above) give effect to the original intention. This repeal commences retrospectively on 18 April 2015 to ensure that no one is disadvantaged in the intervening period.

 

Careful consideration of each item affected by the retrospective change has confirmed that there is no disadvantage to any person by the retrospective commencement of the changes.

 

A note clarifies that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 

Subsection 2(2) provides that any information in column 3 of the table is not part of the Regulation. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument. Column 3 of the table provides the date/details of the commencement date.

 

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

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act) and the Australian Citizenship Act 2007 (the Citizenship Act).

 

The purpose of this section is to set out the Acts 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 this Regulation operate.

 

Schedule 1 - Diplomatic dependant students

 

Item 1 - Amendments of listed provisions--repeals

 

This item repeals clauses 570.228, 571.228, 572.228, 573.228, 574.228, 575.228, 576.226 and 580.228 of Schedule 2 to the Migration Regulations 1994 (the Migration Regulations).

 

These clauses provided that if the application was made in Australia and, at the time of application, the applicant was in Australia as the spouse, de facto partner or dependent relative of a diplomatic or consular representative of a country other than Australia:

*         that representative has completed, or is about to complete, an official posting in Australia; and

*         the Foreign Minister recommends the grant of the visa.

 

Previously, under these clauses, dependent relatives of a diplomat or consular representative could apply for a student visa or a student guardian visa in Australia only when that representative has completed or is about to complete the posting in Australia. This was because the dependant of such a representative was usually entitled to study on their diplomatic visa during the period of the posting.

 

However, there are situations where the dependent relatives will need to apply for a student visa or a student guardian visa during that representative's posting period in Australia. For example:

*         The applicant may seek to study in a city other than that which their parents are posted, meaning they will no longer form part of the diplomat or consular representative's physical household and can no longer hold a diplomatic visa;

*         Department of Foreign Affairs and Trade (DFAT) requires that only children up to 21 years of age who form part of the diplomat or consular representative's physical household are accepted as dependants and therefore are eligible for diplomatic visas. Children may be over 21 years of age during the representative's posting period and need to continue their study in Australia;

*         When the child of the diplomat or consular representative is under 18 years old and needs a separate student visa to study (for example in another city), one of their parents may need a student guardian visa to fulfil the welfare requirements in the student visa regulations.

 

Applicants were required to travel outside Australia to lodge their student or student guardian visa application in order to be granted the visa if the timing of the diplomatic posting is not nearing completion. Applicants were also required to obtain a no-objection letter from DFAT in order to be granted the visa.

 

The purpose of this amendment is to allow dependent relatives of the diplomatic or consular representative to apply for a student visa or a student guardian visa in Australia during that representative's posting period and to remove the requirement to provide a no-objection letter from DFAT. The proposed change will reduce the regulatory burden currently imposed on dependent holders of a Subclass 995 (Diplomatic (Temporary)) visa who wish to move to a student visa or a student guardian visa. Policy has advised that DFAT is also supportive of the proposed change as it is expected to reduce the regulatory burden on the department, DFAT and applicants.

 

Schedule 2 - Working conditions for diplomatic domestic workers

 

Item 1 - Clause 403.242 of Schedule 2

 

This item inserts a new subclause 403.242(1) before the word "If".

 

This item is a technical and consequential amendment. Currently clause 403.242 consists of one clause. The purpose and effect of this item is to amend the structure of clause 403.242 to provide for two subclauses. The new subclause 403.242(1) replicates the existing of provisions clause 403.242.

 

Item 2 - At the end of clause 403.242 of Schedule 2

 

This item inserts a new subclause 403.242(2). The purpose of this item is to add a criterion for the grant of a for a Subclass 403 (Temporary Work (International Relations)) visa (Subclass 403 visa) where the application is made in Australia. This will ensure that the same requirements apply to applications made in Australia as with those applications made outside Australia.

 

The effect of this item is that all applications for a Subclass 403 visa require that the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards.

 

Schedule 3 - Subclass 600 (Visitor) visa

 

Item 1 - Clause 600.215 of Schedule 2

 

Clause 600.215 of the the Migration Regulations requires exceptional circumstances to exist if the grant of the visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as a holder of certain listed visas.

 

This item substitutes clause 600.215 to include bridging visas in addition to the existing visas:

*         one or more visitor visas;

*         a subclass 417 (Working Holiday) visa;

*         a subclass 462 (Work and Holiday) visa.

The purpose of this item is to ensure it is a criterion for the grant of a Subclass 600 (Visitor) visa that the grant of the visa would not allow an applicant to stay in Australia for more than 12 consecutive months as the holder of one of the visas listed in subclause 600.215(2).

 

The effect of this item is that an applicant who is granted a bridging visa associated with their visitor visa application will be required to demonstrate exceptional circumstances to be able to extend their period of stay in Australia beyond 12 consecutive months.

 

Schedule 4 - Referred stay visa

 

Item [1] - Subregulations 2.07AK(2) to (5)

 

This item repeals old subregulations 2.07AK(2) to (5) and substitutes a lower eligibility requirement in relation to the issuing of a certificate by the Attorney-General in subregulation 2.07AK(3) of Division 2.2 of Part 2 of the Migration Regulations. This item also restructures subregulations 2.07AK (2) to (5) enable the lower eligibility requirement changes and improve readability of the regulation.

 

Previously, alternatives in subparagraphs 2.07AK(3)(c)(i) and (ii) of Part 2 of the Migration Regulations provided that the Attorney-General (or a person authorised by the Attorney-General) may issue a certificate in relation to the person if:

*         the person made a contribution to, and cooperated closely with, the prosecution of a person who was alleged to have engaged in human trafficking, slavery or slavery-like practices or who was alleged to have forced a person into exploitative conditions (whether or not the person was convicted); or

*         the person made a contribution to, and cooperated closely with, an investigation in relation to which the Director of Public Prosecutions (DPP) has decided not to prosecute a person who was alleged to have engaged in human trafficking, slavery or slavery-like practices or who was alleged to have forced a person into exploitative conditions.

 

New subregulation 2.07AK(3) relevantly provides that the Attorney-General (or a person authorised by the Attorney-General) has, after taking into account information provided by a member of the Australian Federal Police (AFP) of equivalent or higher rank to a Commander, issued a certificate in relation to the person to the effect that the person made a contribution to, and cooperated closely with, an investigation in relation to another person who was alleged to have engaged in human trafficking, slavery or slavery-like practices.

 

The remaining provisions have been restructured to improve readability but the restructure is not intended to affect the legal intent of the redrafted provisions.

 

The effect of this amendment is that the threshold for eligibility for an Attorney-General's certificate for a referred stay visa is lowered to where the person had made a contribution to, and cooperated closely with, an investigation in relation to a person who was alleged to have engaged in human trafficking, slavery or slavery-like practices, even if that investigation does not progress to a brief of evidence or prosecution. The effect of the amendment is also that the Attorney-General or person authorised by the Attorney-General for the purpose must take into account information provided by a member of the AFP of equivalent or higher rank to a Commander before issuing an Attorney-General's certificate. Lowering this threshold means the new provision may now include circumstances where the alleged offender is immune from investigation or criminal prosecution, or where there is insufficient evidence in Australia to support submitting a brief of evidence, or where the offender is no longer in Australia.

 

Schedule 5 - Work requirements for working holiday visas

 

Item 1 - Subclause 417.211(5) of Schedule 2

 

This item repeals and substitutes subclause 417.211(5) of Schedule 2 to the Migration Regulations.

 

Previously, subclause 417.211(5) provided that if the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister must, among other things, be satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

 

New subclause 417.211(5) now requires that where an applicant for a Subclass 417 visa is, or has previously been, in Australia as the holder of a Subclass 417 visa, before granting the visa the Minister must satisfied that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards. The new subclause also clarifies that the applicant has carried out (whether on a full time, part time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and the total period of the work carried out is, or is equivalent to, at least three months full time work.

 

The three months duration of the specified work is assessed under policy on a full-time equivalent basis. Part-time and casual work is eligible, but the sum total of the work performed needs to be the equivalent of full-time employment over a three month period.

 

The purpose of this amendment is to clarify that in order to be granted a second Subclass 417 visa, the applicant must have completed at least three months of specified work (whether on a full time, part time or casual basis) in regional Australia. The purpose is also to ensure that the work is remunerated in accordance with relevant laws.

 

The effect of this amendment is that inappropriately remunerated work would be prohibited for the purposes of second visa eligibility

 

Schedule 6 - Addition of Public Interest Criterion 4020 to certain visa subclasses

 

Item 1 - At the end of Subdivision 124.22 of Schedule 2

 

This item inserts a new subclause 124.228 to apply the requirement to meet Public Interest Criterion (PIC) 4020 to both the applicant for a Subclass 124 (Distinguished Talent) visa (Subclass 124 visa) and each member of the applicant's family unit (regardless of whether they are an applicant or not) except where the applicant meets the requirements of subclause 124.211(4). PIC 4020 relates to the provision of bogus documents,  false or misleading information and evidence of identity.

 

The effect of this item is to ensure that the primary applicant cannot be granted a Subclass 124 visa unless they and their family members satisfy PIC 4020. The purpose of this item is to ensure that if one family member fails PIC 4020, the primary applicant cannot be granted the visa. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

This item does not apply to applicants and their family members if the applicant meets the requirements of subclause 124.221(4), which relates to an applicant who has provided specialised assistance to the Australian Government in matters of security.

 

Item 2 - At the end of Subdivision 124.32 of Schedule 2

 

This item inserts a new subclause 124.327 to apply PIC 4020 to a secondary applicant who is a family member of a holder of a Subclass 124 visa unless the primary applicant meets the requirements of subclause 124.211(4) which relates to an applicant who has provided specialised assistance to the Australian Government in matters of security.

 

The effect and purpose of this item is to ensure that the secondary applicant must also meet PIC 4020 in order for them to meet the secondary criteria for a Subclass 124 visa.

 

Item 3 - Subclause 405.227(6) of Schedule 2

 

This item inserts ", 4020" after "4019" to apply the requirement to meet PIC 4020 to an applicant for a Subclass 405 (Investor Retirement) visa (Subclass 405 visa) who does not meet subclause 405.228.

 

The effect and purpose of this item is to ensure that the applicant must meet PIC 4020 in order for them to meet the primary criteria for a Subclass 405 visa.

 

Item 4 - Paragraph 405.227(7)(a) of Schedule 2

 

This item inserts "and 4020" after "4014" to apply the requirement to meet PIC 4020 to the spouse or de facto partner of the primary applicant for a Subclass 405 visa.

 

The effect and purpose of this item is to ensure that the primary applicant cannot be granted the Subclass 405 visa if their spouse or de facto partner do not meet PIC 4020. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

Item 5 - Paragraph 405.228(6) of Schedule 2

 

This item inserts ", 4020" after "4019" to apply the requirement to meet PIC 4020 to the primary applicant who holds or, since last entering Australia, the last substantive visa held, was a Subclass 405 visa.

 

The effect and purpose of this item is to ensure that the primary applicant must meet PIC 4020 in order for them to meet the primary criteria for a Subclass 405 visa.

 

Item 6 - Paragraph 405.228(6A)(a) of Schedule 2

 

This item omits the phrase "and 4014" and substitutes it with ", 4014 and 4020" to apply PIC 4020 to a spouse or de facto partner of primary applicant who meets the requirements of subclause 405.228(1).

 

The effect and purpose of this item is to ensure that the primary applicant cannot be granted the Subclass 405 visa if their spouse or de facto partner does not meet PIC 4020. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

Item 7 - Paragraph 405.329(3)(a) and 405.330(3)(a) of Schedule 2

 

This item inserts "4020" after "4014" to apply the requirement to meet PIC 4020 to spouse or de facto partner of the primary applicant for Subclass 405 visa.

 

The effect and purpose of this item is to ensure that the spouse or de facto partner must also meet PIC 4020 in order for them to meet the secondary criteria for a Subclass 405 visa. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

Item 8 - Paragraph 410.221(8)(a) of Schedule 2

 

This item omits the phrase "and 4019" and substitutes it with ", 4019 and 4020" to apply the requirement to meet PIC 4020 to both the primary applicant and their spouse or de facto partner for Subclass 410 (Retirement) visa (Subclass 410 visa).

 

The effect and purpose of this item is to ensure that the primary applicant cannot be granted the Subclass 410 visa if their spouse or de facto partner (regardless of whether they are an applicant) do not meet PIC 4020. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

Item 9 - Subparagraph 410.321(3)(a)(i) of Schedule 2

 

This item omits the phrase "and 4014" and substitutes it with ", 4014 and 4020" to apply the requirement to meet PIC 4020 to the spouse or de facto partner of a primary applicant for a Subclass 410 visa.

 

The effect and purpose of this item is to ensure that the spouse or de facto partner must also meet PIC 4020 in order for them to meet the secondary criteria. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

Item 10 - Clause 771.222 of Schedule 2

 

This item inserts ", 4020" after "4014" to apply the requirement to meet PIC 4020 to applicant for a Subclass 771 (Transit) visa (Subclass 771 visa).

 

The effect and purpose of this item is to ensure that an applicant must meet PIC 4020 in order for them to meet the criteria for a Subclass 771 visa.

 

Item 11 - At the end of Subdivision 858.22 of Schedule 2

 

This item adds a new subclause 858.227 to apply the requirement to meet PIC 4020 to both the applicant and each member of the applicant's family unit unless the applicant meets the requirements of subclause 858.212(4).

 

The effect of this item is to ensure that the primary applicant cannot be granted a Subclass 858 (Distinguished Talents) visa (Subclass 858 visa) unless they and their family members satisfy PIC 4020. The purpose of this item is to ensure that if one family member fails PIC 4020, the primary applicant cannot be granted the visa. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

This item does not apply to applicants and their family members if the applicant meets the requirements of subclause 858.221(4), which relates to an applicant who has provided specialised assistance to the Australian Government in matters of security.

 

Item 12 - At the end of Subdivision 858.32 of Schedule 2

 

This item adds a new subclause 858.326 to apply the requirement to meet PIC 4020 to the family members of the primary applicant for a Subclass 858 visa unless the primary applicant meets the requirements of subclause 858.212(4).

 

The effect and purpose of this item is to ensure that the spouse or de facto partner must also meet PIC 4020 in order for them to meet the secondary criteria. This is intended to ensure that family members are not separated if the primary applicant could be granted a visa but their family members could not.

 

This item does not apply to applicants and their family members if the applicant meets the requirements of subclause 858.221(4), which relates to an applicant who has provided specialised assistance to the Australian Government in matters of security.

 

Item 13 - Clause 988.222 of Schedule 2

 

This item inserts ", 4020" after "4014" to apply the requirement to meet PIC 4020 to an applicant for a Subclass 988 (Maritime Crew) visa (Subclass 988 visa).

 

The effect and purpose of this item is to ensure that the applicant must meet PIC 4020 in order for them to meet the criteria for a Subclass 988 visa.

 

Item 14 - Clause 988.322 of Schedule 2

 

This item inserts ", 4020" after "4014" to apply the requirement to meet PIC 4020 to an applicant who is spouse or de facto partner or dependent child of the primary applicant for a Subclass 988 visa.

 

The effect and purpose of this item is to ensure that the secondary applicant must meet PIC 4020 in order for them to meet the criteria for a Subclass 988 visa.

 

Schedule 7 - Technical Amendments

 

Item 1 - Paragraph 4102(1)(a) of Schedule 13

 

This item substitutes a new paragraph 4102(1)(a) in Schedule 13.

 

After the commencement of Schedule 2 to the Migration Amendment (2015 Measures No. 1) Regulation 2015 on 18 April 2015 it was noted that there might be unfinalised applications for a visa made before 1 July 2012 (when the invitation requirement was introduced). These applicants would not have made an application in response to an invitation and so the 18 April 2015 amendments might inadvertently result in regulations 1.15D and 1.15EA not being capable of applying to those applicants. This would disadvantage those applicants because they would not be able to be awarded the points for those English levels.

 

This item is a technical amendment to ensure that the amendments made by Schedule 2 to the Migration Amendment (2015 Measures No. 1) Regulation 2015 on 18 April 2015 apply as originally intended. Therefore this amendment, which commences retrospectively, immediately after the amendments of 18 April 2015, ensures that the amendments made on 18 April 2015 do not apply to applications made before 1 July 2012, and is beneficial to those applicants.

 

Item 2 - Subclause 4102(2) of Schedule 13

 

This item repeals subclause 4102(2) of Schedule 13.

 

Subclause 4102(2) was a transitional provision inserted to make provision for any applicants with undecided applications who might have achieved the required English language score in an English test after the invitation was issued (and before the application was lodged). It was intended that this provision would prevent disadvantage to an applicant arising from the amendments required a test to be conducted in the three years before the invitation, resulting the application having to sit a new test.

 

In fact subclause 4102(2) contained a typographical error, referring to tests taken before rather than after the invitation was issued. The effect of this error was to prevent the application of the changes to the majority of applicants, when it was intended to prevent the application of the regulations to only a small group. It is necessary to fix this error because the amendments were beneficial to applicants. It also became clear after the commencement of the regulations in April that the small group we were trying to assist in fact would not be helped by this provision because other provisions would prevent the grant of a visa in any case. Accordingly it is proposed to remove the subclause as, in its correct form, it would have no operation.

 

This item is a technical amendment to ensure that the amendments made by Schedule 2 to the Migration Amendment (2015 Measures No. 1) Regulation 2015 on 18 April 2015 apply as originally intended.

 

Schedule 8 - Foreign currency exchange

 

Item 1 - Subregulation 12A(7)

 

This item substitutes the previous definitions of "conversion instrument" and "places and currencies instrument" in subregulation 12A(7) of the Australian Citizenship Regulations 2007 (the Citizenship Regulations).

 

New definition of "conversion instrument"

 

This item provides that "conversion instrument" means the instrument titled Payment of Visa Application Charges and Fees in Foreign Currencies, (IMMI 16/001), that commences on 1 January 2016.

 

The definition of "conversion instrument" is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign currency specified in the conversion instrument.

This item replaces a reference to the previous instrument in the definition of "conversion instrument" with a reference to an instrument that is made under subregulation 5.36(1A) of the Migration Regulations. This instrument commenced on 1 July 2015 and sets out visa application charge and fee amounts in foreign currencies which correspond to amounts payable in Australian dollars. If the amount of the application fee is mentioned in the conversion instrument, then payment can be made in the corresponding amount in the foreign currency.

 

By referring to the current instrument made under subregulation 5.36(1A) of the Migration Regulations, application fees and refunds payable under the Australian Citizenship Act 2007 (the Citizenship Act) can continue to be paid in foreign currencies. This amendment reduces hardship for clients making applications at overseas posts.

 

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under subregulation 5.36(1A) of the Migration Regulations as in force from time to time. Rather, the current instrument needs to be incorporated by reference at the time of commencement of the Migration Regulations.

 

Instruments made under the Migration Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Border Protection to make instruments under the Citizenship Regulations.

 

New definition of "places and currencies instrument"

 

This item provides that "places and currencies instrument" means the instrument titled Places and Currencies for Paying of Fees, (IMMI 16/002), that commences on 1 January 2016.

 

The definition of "places and currencies instrument" is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign country and a foreign currency specified in the "places and currencies instrument."

 

This item replaces a reference to the previous instrument in the definition of "places and currencies instrument" with a reference to an instrument that is made under subregulation 5.36(1) of the Migration Regulations. This instrument commenced on 1 July 2015 and sets out the places and currencies for paying fees.

 

By referring to the current instrument made under subregulation 5.36(1) of the Migration Regulations, application fees and refunds payable under the Citizenship Act can continue to be paid in foreign countries and foreign currencies. This amendment reduces hardship for clients making applications at overseas posts.

 

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under subregulation 5.36(1) of the Migration Regulations as in force from time to time. Rather, the current instrument needs to be incorporated by reference at the time of commencement of the Migration Regulations.

 

Instruments made under the Migration Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister for Immigration and Border Protection to make instruments under the Citizenship Regulations.

 

Schedule 9 - Australian citizenship application fees

 

Item 1 - Amendments of listed provisions--changes to application fees

 

This item amends the provisions in Schedule 3 to the Citizenship Regulations to give effect to the Government's decision as part of the 2015-16 Budget to adjust the price of a number of citizenship service fees that are levied to recover costs directly associated with processing.

 

All Citizenship charges were determined following an extensive review of the costs associated with the Citizenship programme, consistent with the Australian Government's Cost Recovery Guidelines. The new fees were set to recover the individual costs associated with each citizenship fee type. This resulted in some fees increasing, and some decreasing, as the previous charges were either not set to match the costs associated with the charges, or had not been reviewed in some time to ensure they were consistent with the costs. Furthermore, efficiencies may have been realised within the department, thereby streamlining the services and decreasing the costs associated with some of the charges.

 

Within this review, it was also determined that Concession and Exemption charges would not be altered.

 

All changes are rounded to a multiple of $5.00 according to the following methodology:

• if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;
• in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

 

The price changes allow for 100% recovery of ongoing costs to the Government to be recovered for each fee, with the exception of all concessional fees.

 

Amendments of listed provisions - changes to citizenship fees

 

Columns 1 and 2 of the tables below identify the fees that are amended. Columns 3 and 4 of the table list the previous fees and the new fees.

 

 

Schedule 10 - Application and transitional provisions

 

Australian Citizenship Regulations 2007

 

Item 1 - Part 4

 

This item amends Part 4 of the Citizenship Regulations to insert regulation 29 entitled 'Amendments made by the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015'.

 

Inserted regulation 29 provides that the amendments of the Citizenship Regulations made by Schedules 8 and 9 to the Regulation apply in relation an application made under a provision of the Citizenship Act on or after 1 January 2016. A note clarifies that Schedules 8 and 9 to the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 commence on 1 January 2016.

 

The effect and purpose of the item is to clarify to whom and when these amendments in the Regulation apply.

 

Migration Regulations 1994

 

Item 2 - Schedule 13

 

This item amends Schedule 13 to the Migration Regulations to insert Part 48 entitled "Amendments made by the Migration Amendment (2015 Measures No. 3) Regulation 2015" and inserts new clauses 4801, 4802 and 4803.

 

Inserted clause 4801, entitled 'Operation of Schedules 1 to 4', provides that the amendments of the Migration Regulations made by Schedules 1 to 4 to the Regulation apply in relation to an application for a visa made on or after 21 November 2015. A note clarifies that Schedules 1 to 4 to the Migration Amendment (2015 Measures No. 3) Regulation 2015 commence on 21 November 2015.

 

Inserted clause 4802, entitled 'Operation of Schedule 5', provides that the amendments of the Migration Regulations made by Schedule 6 to the Regulation apply in relation to an application for a visa made on or after 1 December 2015. However, paragraph 417.211(5)(c) of Schedule 2 (as amended by the amendments referred to in subregulation 417.211(1)) does not apply in relation to specified work carried out before 1 December 2015.

 

The effect and purpose of this clause is to ensure that any specified work performed by the applicant pre-1 December 2015 is assessed against the previously existing criteria, and to assess any specified work performed by the applicant from 1 December 2015 onwards against the new criteria. Where an applicant has performed specified work both pre and post 1 December 2015, each period of work will be assessed against the criteria in effect at the time the work was performed. This ensures that applicants who completed specified work prior to 1 December 2015 are not subject to these additional requirements.

 

Inserted clause 4803, entitled 'Operation of Schedule 6', provides that the amendments of the Migration Regulations made by Schedule 6 to the Regulation apply in relation to an application made, but not finally determined, before 21 November 2015 and an application made on or after 21 November 2015. A note clarifies that Schedules 6 to the Migration Amendment (2015 Measures No. 3) Regulation 2015 commences on 21 November 2015.

 

The amendments made by Schedule 6 relate to the provision of bogus documents, false or misleading information and identity. It is appropriate that these amendments apply to unfinalised visa applications to ensure that visas are granted to genuine and correctly identified applicants. Given the importance of accurate identity verification to national security and the public interest it is appropriate to ensure these safeguards apply to all visas granted after the commencement of the Regulation.

 

Further, section 504 of the Migration Act authorises the making of regulations that are necessary or convenient to carry out or give effect to the objectives of the Migration Act, which include regulating the entry and stay of non-citizens in Australia in the national interest. Accordingly, these amendments apply to all relevant applications decided on or after the commencement of the Regulation.

 

An application and transitional provision is not required for Schedule 7.

 

The purpose of these amendments is to clarify to whom these amendments in the Regulation apply.