ATTACHMENT A

 

 

POWERS OF DELEGATION

 

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.

 

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 necessary or convenient to be prescribed for carrying out or giving effect to the Citizenship Act.

 

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

 

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

*         subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

 

*         subsection 31(4) of the Act, which provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

 

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

 

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

 

*         subsection 41(2) of the Act, which provides that without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to:

 

(a)    a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive (other than a protection visa or a temporary visa of a specified kind) while he or she remains in Australia; or

(b)   a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing any work, or work other than specified work, or work of a specified kind;

 

*         subsection 41(2A) of the Act, which provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph 41(2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection 41(3);

 

*         subsection 41(3) of the Act, which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of that subsection;

 

*         paragraph 46(1)(b) of the Act, which provides that, subject to subsections 46(1A), (2) and (2A), an application for a visa is valid if, and only if, it satisfies the criteria and requirements prescribed under that section;  

 

*         subsection 66(1) of the Act, which provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way;

*         subsection 70(1) of the Act, which provides that certain person may request to be given a prescribed form of evidence of a visa;

*         paragraph 70(2)(a) of the Act, which provides that the request for evidence of a visa must be made in the prescribed way;

*         paragraph 70(2)(b) of the Act, which provides that the request must be lodged at the prescribed place;

*         subsection 71(2) of the Act, which provides that the amount of the visa evidence charge is the prescribed amount which must not exceed the visa evidence charge limit for the request. The visa evidence charge limit is defined in subsection 5(1) of the Act has the meaning given by the Migration (Visa Evidence) Charge Act 2012;

*         subsection 71(3) of the Act, which deals with the regulations that may be made in relation to the visa evidence charge, in particular the regulations may specify circumstances in which the amount of the visa evidence charge is nil;

*         section 71B of the Act, which deals with regulations that may be made about the visa evidence charge, in particular the regulations may make provision for:

• the circumstances in which a prescribed form of evidence of a visa may be requested or given;
• the method of payment (including the currency in which the charge must be paid);
• the remission, refund or waiver (in whole or in part) of the charge);

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

 

(a) is to get a specified person or organisation, or a person or organisation in a

specified class, to:

(i) give an opinion on a specified matter; or

(ii) make an assessment of a specified matter; or

(iii) make a finding about a specified matter; or

(iv) make a decision about a specified matter; and

 

(b) is:

(i) to have regard to that opinion, assessment, finding or decision in; or

(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;

deciding whether the applicant satisfies the criterion;

 

*         subsection 23(2) of the Citizenship Act, which provides that if:

• a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed by the regulations; and
• the defence person has completed relevant defence service; and
• another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and
• the relative holds a visa of that kind because the relative is a member of the family unit of the defence person;

the relative satisfies the defence service requirement for the purposes of section 21;

 

*         subsection 23(3) of the Citizenship Act, which provides that if:

• a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed by the regulations; and
• the defence person dies while undertaking service in the Permanent Forces or the Reserves; and
• another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and
• immediately before the death of the defence person, the relative held a visa of that kind because the relative was a member of the family unit of the defence person;

the relative satisfies the defence service requirement for the purposes of section

21;

 

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

 

*         subsection 46(3) of the Citizenship Act, which provides that the 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 Act.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

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.

 

• Schedules 1 and 2 - Amendments of Migration Regulations 1994 relating to travel documents

 

Overview of the Legislative Instrument

These amendments introduce a Public Interest Criterion (PIC) that will require applicants to present a valid travel document at time of visa grant.

The PIC will strengthen existing provisions that prevent the use of travel documents deemed unacceptable for foreign policy or integrity reasons by allowing the Minister to declare that specified travel documents are not to be taken to be passports.

The Department of Foreign Affairs and Trade (DFAT) has provided advice that where acceptance of travel documents for visa grant would indicate recognition of the issuing authority contrary to Australian Government foreign policy, or travel documents issued by an entity that is not recognised by the Australian Government as empowered to issue travel documents, travel documents should not be accepted or endorsed.

The time of decision requirement for a valid passport in relevant visas in Schedule 2 to the Migration Regulations 1994 (the Principal Regulations) has been changed to a PIC so that the Minister may direct in the form of an instrument that a specified document or travel documents with certain characteristics are not to be taken to be a passport or travel document for the purpose of visa grant.

Human rights implications

It is already accepted that international law does permit a country to impose restrictions on who may enter it.  The proposed regulations, inasmuch as they require a visa applicant to present a valid travel document in order to satisfy one of the conditions for a grant of a visa, reflect that accepted position.

In relation to Australia's human rights obligations, the only right contained in the International Covenant on Civil and Political Rights (ICCPR) relevant to the proposed amendment is the right to freedom of movement under Article 12 of the ICCPR.  Freedom of movement relates to the right to move freely within a country for those who are lawfully within a country, the right to leave any country and the right to enter a country of which you are a citizen. 

Article 12(1) provides that '[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.'  To the extent that a visa applicant is not lawfully in the territory of a State (e.g. for offshore applicants who have applied for a particular visa which requires satisfying the proposed PIC), this right is not applicable.  For those applicants lawfully in a State at the time of application, the rights under article 12(1) apply to the visa that they hold at the time of application, but do not apply for subsequent visa applications which have not been granted because of the failure to satisfy the proposed PIC.  Article 12(1) is correspondingly not engaged in the proposed regulations, except for persons lawfully in Australia on another basis.

Article 12(4) provides that '[n]o one shall be arbitrarily deprived of the right to enter his own country.'  As this provision as stated above only relates to citizens (noting the position of the Australian Government in the Response of the Australian Government

to the views of the Committee in Communication no. 1557/2007, Nystrom et al v Australia), it is also not applicable.

The restrictions that will be introduced in the Principal Regulations are for the legitimate, proportionate and reasonable objective of ensuring that travel documents should not be endorsed or accepted where to do so would indicate recognition of the issuing authority contrary to Australian Government foreign policy or where they would pose unacceptable risks to the integrity of Australia's migration programs. 

The measures are aimed at the legitimate purpose of managing Australia's borders consistently with Australia's foreign policy objectives as well as national security objectives of ensuring the identity of persons entering Australia. The measures also provide the power to make exceptions where circumstances warrant special consideration.

Conclusion

The amendments to the Principal Regulations are compatible with human rights because they do not engage any of the relevant rights.

 

• Schedule 3 - Amendments of Migration Regulations 1994 relating to skilled visas

 

Overview of the Bill/Legislative Instrument

These measures make a number of minor and technical amendments to the Principal Regulations in relation to certain skilled migration visas:

• The omission of the definition of 'Occupations Requiring English List' in Regulation 1.03, which was made redundant after Regulation 1.19 was removed on 1 July 2012;
• The insertion of a new paragraph 4.02(4)(la) in Division 4.1 of Part 4 of the Principal Regulations. This rectifies an unintended consequence arising from the introduction of the new Subclass 489 (Skilled - Regional (Provisional)) visa on 1 July 2012 in relation to Migration Review Tribunal (MRT) review rights.  The new Subclass 489 visa does not distinguish between onshore and offshore applications, with the unintended consequence that the sponsor does not have a review right if the applicant is offshore at the time of application. This also affects a secondary applicant who is offshore and who has not made a combined application with the primary applicant. The purpose of this item is to ensure that sponsors of these groups of applicants will have review rights to the MRT if the application is refused;
• The insertion of a new provision in subregulation 4.02(5) in Division 4.1 of Part 4 of the Principal Regulations to reflect the proposed new paragraph 4.02(4)(la). This amendment is consequential to the proposed amendment above and would specify that the sponsor or nominator has a review right in the case of a decision to which paragraph 4.02(4)(la) would relate;
• The substitution of paragraph 5.19(3)(c)(i) in Division 5.3 of Part 5 of the Principal Regulations, which would clarify the policy intention that in the three years immediately before the nominator made the application, the applicant must both have held a Subclass 457 visa for at least two years, and have been employed in the position in respect of which the person holds a Subclass 457 visa for at least two years (not including any period of unpaid leave);
• The omission of the definition of 'associated entity' from subregulation 5.19(7) of Division 5.3 of Part 5 of the Principal Regulations. This definition is unnecessary because the term 'associated entity' is not used in regulation 5.19;
• The amendment of several Schedule 1 provisions to specify the form which must be used to make a valid application for a visa. The purpose of these amendments is to include the word '(Internet)' after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form;
• The amendment of several Schedule 1 provisions to omit the words 'outside of Australia' and insert the words "outside Australia" to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations;
• The inclusion of the words 'seeking to satisfy the primary criteria' in paragraph 1104BA(3)(c) of Schedule 1 to the Principal Regulations is intended to clarify the policy intention that only primary applicants for the Subclass 888 (Business Innovation and Investment (Permanent)) visa are required to be nominated by a State or Territory government agency. This ensures that the paragraph only applies to applicants seeking to satisfy the primary criteria for the subclass;
• The substitution of paragraphs 132.232(1)(a) to (d) of Schedule 2 to the Principal Regulations to include the words 'in Australia' in each paragraph to ensure that venture capital funding sourced by applicants seeking to satisfy the primary criteria for the grant of a Subclass 132 visa in the Venture Capital Entrepreneur stream will be used for a business in Australia. Subdivision 132.23 prescribes the criteria for the Venture Capital Entrepreneur stream which was inserted into the Subclass 132 (Business Talent) visa on 1 July 2012 by the amending regulation. This stream implements the policy objective of facilitating entry to Australia for entrepreneurs who have sourced venture capital funding in Australia;
• The substitution of certain clauses in Schedule 2 to the Principal Regulations which relate to 'Circumstances applicable to grant'. The clauses relate to the location of the applicant at the time a visa is granted. The wording of the provisions, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations. The purpose of these items is to reword the clause to achieve consistency across the Principal Regulations;
• The insertion of the words 'At the time of invitation' into clause 188.226 of Schedule 2 to the Principal Regulations to clarify that it relates to the value of assets held at the time of invitation. It is the approved policy intention that the criterion in clause 188.226 must be satisfied at the time the applicant is invited, in writing, by the Minister to apply for a Subclass 188 (Business Innovation and Investment (Provisional)) in the Business Innovation stream;
• The insertion of a reference to the Business Skills (Residence) (Class DF) visa into subclause 888.222(2) in Schedule 2 to the Principal Regulations to ensure that the provision refers to the complete suite of Business Skills visas which is intended to be covered by the provision. Subclause 888.222(2) is intended to prevent provisional visa holders from gaining a permanent visa where they have bought and operated a business which has recently been used by the previous owner to obtain a permanent visa under the Business Skills program;
• The insertion of the words 'in Australia' into subclause 888.225(4) in Schedule 2 to the Principal Regulations to reflect the policy intention that the net business and personal assets of the applicant must be in Australia in order to satisfy the criterion;

and

• The substitution of clause 888.226 in Schedule 2 to the Principal Regulations to reflect the approved policy position. It is the policy intention that, if exceptional circumstances exist, the applicant need meet only one of the requirements in subclauses 888.225(2) to (4) or subclause 888.225(5). The purpose of this amendment is to allow an applicant to meet the exceptional circumstances criterion if they meet the alternative requirement which is set out in subclause 888.225(5).     

 

Human rights implications

These amendments do not engage any of the applicable rights or freedoms.

The amendments are minor technical amendments that to do not have a substantive impact on the applicable human rights.

 

Conclusion

These amendments are compatible with human rights as they does not raise any human rights issues.

 

• Schedule 4 - Amendments of Migration Regulations 1994 relating to tourist visas

 

Overview of the Legislative Instrument

These amendments to the Principal Regulations facilitate the grant of longer validity Subclass 676 (Tourist) visas with longer stay periods.  This change is intended to benefit parents of Australian citizens and permanent residents.  It recognises the valuable role parents play in assisting their children and grandchildren and the social benefits such visits provide.

 

In particular, the amendments:

• allow the discretionary imposition of a condition requiring Subclass 676 (Tourist) visa holders to maintain health insurance while in Australia;
• allow the discretionary imposition of a proposed new condition, relating to the length of stay of the visa holder in Australia. This condition would require the visa holder to not stay in Australia for more than 12 months in any 18 month period. This is consistent with the purpose of  the Subclass 676 (Tourist) visa which facilitates the temporary entry of family visitors; and
• provide for the new condition in the existing public interest criterion 4013.  This condition  will affect applicants who have previously held a Subclass 676 (Tourist) visa and it has been cancelled due to the applicant not complying with the proposed new condition above, requiring the visa holder to not stay in Australia for more than 12 months in any 18 month period.

Human rights implications

These amendments aim to streamline visa processes to improve client service and processing times, while maintaining the integrity of the program. Each of the proposed changes has been assessed against the seven core international human rights treaties and does not engage applicable rights and freedoms.

Conclusion

These amendments are compatible with human rights as they do not raise any human rights issues.

 

• Schedule 5 - Amendments of Migration Regulations 1994 relating to visas and charges

 

Overview of the Regulations

These amendments to the Principal Regulations prescribe details relating to a new visa evidence charge that was introduced in the Migration (Visa Evidence) Charge Act 2012.  The charge is imposed when visa holders (or authorised third parties) request that a visa be evidenced (or re-evidenced). The evidence may take the form of a visa label or other non-electronic form, such as letters.

The amendments prescribe:

• the types of evidence that may be provided to an applicant;
• the types of evidence that the visa evidence charge will apply to;
• the circumstances in which the visa evidence charge may be remitted, refunded or waived;
• those applicants who are exempt from the visa evidence charge;     
• the evidence charge for different types of evidence;
• the manner, including the currency, in which the visa evidence charge is to be paid;
• the time when the visa evidence charge is to be paid;
• who may be paid the visa evidence charge on behalf of the Commonwealth; and
• who may apply for and who may receive visa evidence.

 

Human rights implications

The Department of Immigration and Citizenship (DIAC) has considered the seven key international treaties. The amendments do not engage any of the applicable rights or freedoms there under. 

However, DIAC notes that the amendments may have some differential impact on citizens of certain countries who are required to show evidence of a visa in order to meet their own country's exit requirements.  Any such differential treatment is the result of the application of their country's migration laws and does not constitute unlawful discrimination by Australia under Article 26 of the International Covenant on Civil and Political Rights (ICCPR). 

Further, the impact of the proposal on any other countries' exit permission requirements will be mostly, if not wholly, on persons outside Australia's jurisdiction, in respect of whom Australia does not owe obligations under the ICCPR.

Conclusion

These amendments are compatible with human rights as they do not raise any human rights issues.

 

• Schedule 6 - Amendments of Migration Regulations 1994 relating to evidentiary requirements for family violence claims

 

Overview of the Legislative Instrument

The family violence provisions in the Principal Regulations enable certain visa applicants to apply to remain in Australia if their partner relationship breaks down due to family violence.  These provisions were introduced in response to community concerns that some partners might feel compelled to remain in abusive relationships rather than end the relationship if this means they would need to leave Australia.

Claims of family violence are initially considered by DIAC's visa processing officers based on either judicial or non-judicial evidence.  The amendments do not seek to change the provisions relating to judicially determined family violence. 

Currently, non-judicial evidence is usually made up of statutory declarations provided by the applicant and two competent persons qualified to make a determination on whether or not a person is a victim of family violence.  The term 'competent person' is defined in the Principal Regulations and includes a number of professions working in particular fields. The statutory declarations by the two competent persons must meet a number of technical requirements.

The process of obtaining acceptable statutory declarations from competent persons in circumstances of non-judicially determined family violence can be difficult for some visa applicants. It can be traumatic for genuine family violence victims to re-tell their story to a stranger and can also be difficult for victims living in remote geographic locations and small communities to obtain statutory declarations. These issues were highlighted in a recent Australian Law Reform Commission report entitled Family Violence and Commonwealth Laws - Improving Legal Frameworks.

To address the above concerns and to respond partly to the Australian Law Reform Commission's report, DIAC proposed to amend the minimum evidentiary requirements for making a non-judicial family violence claim. On 17 June 2012, the Minister for Immigration and Citizenship and the Minister for the Status of Women jointly announced their intent to pursue these measures to improve the accessibility and operation of the family violence provisions.

Under the new framework, subregulation 1.24(1) is amended to refer to a legislative instrument. This instrument specifies the minimum evidentiary requirement to make a non-judicially determined claim of family violence being at least two documents from a list of acceptable evidence specified in the instrument.

In addition, the amended regulation 1.24 also requires the applicant to provide a statutory declaration pursuant to regulation 1.25 outlining the family violence claim.

This change removes the requirement for an applicant to provide statutory declarations from two 'competent persons'. Instead, applicants may provide 2 pieces of evidence prescribed in the instrument in writing. All references to competent persons are also be removed.

It is still be open for applicants to make a non-judicial claim of family violence by providing a joint undertaking to a court in relation to family violence proceedings.

 

Human rights implications

The amendments engage a number of international human rights conventions and support Australia's obligations in relation to the treaties and articles highlighted below.

International Covenant on Civil and Political Rights (ICCPR)

The amendments are consistent with Article 23(4) of the ICCPR, which states that appropriate steps should be made to ensure the equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution, and also for the necessary protection of any children during dissolution.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The amendments are consistent with Article 10(1) of the ICESCR, which states that the widest possible protection and assistance should be accorded to the family, particularly in relation to the care of dependent children and the free consent of spouses to enter marriage. The ICESC also recognises the ideal of persons enjoying freedom from fear and want.

International Convention on the Rights of the Child (CROC)

The amendments are consistent with Articles 3(2) and 19(11) of the Convention on the Rights of the Child (CROC).

Articles 3(2) and 19(1) of the CROC state that state parties undertake to protect the wellbeing of children and take measures to protect children from violence, abuse or mistreatment. The family violence provisions can also be enlivened where a child of an applicant has suffered family violence at the hands of the applicant's partner. The changes will widen the potential scope of evidence of family violence toward children which may be provided to enliven a claim of non-judicially determined family violence.

 

Conclusion

The amendments are compatible with human rights because they are consistent with our obligations under the ICCPR, ICESCR and CROC.

 

 

• Schedule 8 - Amendments of Australian Citizenship Regulations 2007 relating to currency

Overview of the Regulation 12A

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 the Migration Regulations 1994.  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, regulation 12A must be amended to specify the new instrument numbers.  

Human rights implications

The amendments do not engage any of the applicable rights or freedoms.

Conclusion

The amendments are compatible with human rights as they do not raise any human rights issues.

 

• Schedule 9 - Amendment of Australian Citizenship Regulations 2007 relating to Defence families

Overview of the Legislative Instrument

The Migration Legislation Amendment Regulation 2012 (No. 5) amends the Australian Citizenship Regulations 2007 to prescribe the visas pursuant to new section 23 of the Australian Citizenship Act 2007 ('the Citizenship Act').

The Australian Citizenship Amendment (Defence Families) Act 2012 extended the residency discretion in section 23 to family members who have been granted a visa on or after
1 July 2007:

• of the kind granted to the person (defence person) who completed relevant service or who died while undertaking service in the Permanent Forces or the Reserves; and
• on the basis of being a member of the family unit (as defined in the Migration Act 1958) of the defence person.

 

For paragraphs 23(2)(a) and 23(3)(a) of the Citizenship Act, the visas prescribed by the new regulation are:

*         Employer Nomination (Permanent) (Class EN);

*         Labour Agreement (Migrant) (Class AU);

*         Labour Agreement (Residence) (Class BV);and

*         Regional Employer Nomination (Permanent) (Class RN).

 

It is intended that the amendments apply in relation to making of a decision under section 24 of the Australian Citizenship Act 2007 after the commencement of Schedule 1 to the Australian Citizenship Amendment (Defence Families) Act 2012, whether the application to which the decision relates was made before or after that commencement.

 

Human rights implications

 

The amendment does not engage any of the applicable rights or freedoms as outlined in the seven core international human rights treaties. 

 

Conclusion

 

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

 

ATTACHMENT C

 

 

Details of the Migration Legislation Amendment Regulation 2012 (No. 5)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Legislation Amendment Regulation 2012 (No. 5).

 

Section 2 - Commencement

 

This section provides that:

*         sections 1 to 4 and Schedule 1 of the Regulation commence, or are taken to commence, immediately before the commencement of the Migration Legislation Amendment Regulation 2012 (No. 4);

*         Schedules 2 to 7 of the Regulation commence, or are taken to commence, on 24 November 2012; and

*         Schedules 8 and 9 of the Regulation commence, or are taken to commence, on 1 January 2013.

 

Sections 1 to 4 and Schedule 1 of this Regulation commence immediately before the commencement of the Migration Legislation Amendment Regulation 2012 (No. 4) on 24 November 2012.  This is because Schedule 1 to this Regulation amends the secondary criteria for the Subclass 422 (Medical Practitioner) visa, which is being repealed by the Migration Legislation Amendment Regulation 2012 (No. 4) with effect from 24 November 2012.  It is necessary to amend these criteria immediately before that visa is repealed as it will be possible for some people to apply for, and be granted, that visa on the basis of satisfying the secondary criteria as they provided immediately prior to the repeal and those people should satisfy the amended criteria. 

 

Section 3 - Amendment of Migration Regulations 1994

 

This section provides that Schedules 1 to 7 amend the Migration Regulations 1994 (the Principal Regulations).  

 

Section 4 - Amendment of Australian Citizenship Regulations 2007

 

This section provides that Schedules 8 and 9 amend the Australian Citizenship Regulations 2007 (the Citizenship Regulations).     

 

Schedule 1 - Amendments of Migration Regulations 1994 relating to travel documents

 

Item [1] Schedule 2, paragraph 422.323(a)

 

This item inserts Public Interest Criterion 4021 into paragraph 422.323(a) of Schedule 2 to the Principal Regulations.

 

The purpose of this amendment is to replace the valid passport criterion in subclause 422.329 of Schedule 2 with a time of decision criterion that the applicant must satisfy public interest criterion 4021. 

 

The 'valid passport' criterion was currently located in individual visa subclasses in Schedule 2 to the Principal Regulations and provided that:

 

The Minister is satisfied that:

(a)    the applicant is the holder of a valid passport that:

(i)                 was issued to the applicant by an official source; and

(ii)               is in the form issued by the official source; or

(b)   it would be unreasonable to require the applicant to be the holder of a passport.  

 

Public Interest Criterion 4021, which is inserted into the Principal Regulations by Schedule 2 to this Regulation, replicates the 'valid passport' criterion and adds a new requirement that the valid passport must not be in a class of passports specified by the Minister in an instrument in writing for Public Interest Criterion 4021.  It is intended that the class of passports that may be specified by the Minister in an instrument in writing are those passports or travel documents that Australia does not recognise for foreign policy or integrity reasons. 

 

The effect of this amendment is to require applicants who are assessed against the secondary criteria for the Subclass 422 (Medical Practitioner) visa to also hold a valid passport that is not a passport in a class of passports that Australia does not recognise for foreign policy or integrity reasons.

 

Item [2] Schedule 2, clause 422.329

 

This item omits clause 422.329 of Schedule 2 to the Principal Regulations.

 

This amendment is consequential to the amendment at item [1], which inserts Public Interest Criterion 4021.  As the amendment at item [1] replaces the valid passport criterion for applicants who are assessed against the secondary criteria for the Subclass 422 (Medical Practitioner) visa, clause 422.329 is no longer be required.

 

Schedule 2 - Amendment of the Migration Regulations 1994 relating to travel documents

 

Items [1] - [296]

 

These items insert or substitute new Public Interest Criterion 4021 into those visa subclasses to which the current 'valid passport' criterion applies.  These items also omit the 'valid passport' criterion in those visa subclasses.

 

The 'valid passport' criterion was currently located in individual visa subclasses in Schedule 2 to the Regulations and provided that:

 

The Minister is satisfied that:

(a)      the applicant is the holder of a valid passport that:

(i)      was issued to the applicant by an official source; and

(ii)      is in the form issued by the official source; or

(b)     it would be unreasonable to require the applicant to be the holder of a passport.

 

Public Interest Criterion 4021, which is inserted into the Principal Regulations by Schedule 2 to this Regulation, replicates the 'valid passport' criterion and adds a new requirement that the valid passport must not be in a class of passports specified by the Minister in writing for Public Interest Criterion 4021.  It is intended that the class of passports that may be specified by the Minister in an instrument in writing are those passports or travel documents that Australia does not recognise for foreign policy or integrity reasons.

 

The effect of these amendments is to require applicants for those visa subclasses to also hold a valid passport that is not a passport that Australia does not recognise for foreign policy or integrity reasons.  Because the insertion of Public Interest Criterion 4021 replicates the 'valid passport' criteria in those subclasses, those criteria are unnecessary and removed.

 

The amendments insert Public Interest Criterion 4021 into the following provisions in Schedule 2 to the Principal Regulations.  These provisions provide for other Public Interest Criteria that an application must satisfy to be granted a visa:

 

100.222(a)	100.322(a)	101.223(a)	101.323(a)
102.223	102.323	103.224(a)	103.323(a)
114.223	114.323(a)	115.223(a)	115.323(a)
116.223(a)	116.323(a)	117.223	117.323
119.322(a)	120.322(a)	121.322(a)	124.221(a)
124.322(a)	132.213(1)	132.312(1)	143.224(a)
143.323(a)	151.221(a)	151.322(a)	160.322(a)
161.322(a)	162.322(a)	163.322(a)	164.322(a)
165.322(a)	173.224(a)	175.322(a)	176.322(a)
186.213(1)	186.313(1)	187.213(1)	187.313(1)
188.213(1)	188.312(1)	189.215(1)	189.312(1)
190.216(1)	190.312(1)	300.223(a)	300.323(a)
303.227	309.225(a)	309.323(a)	401.216(1)
401.316(1)	402.216(1)	402.316(1)	403.214(1)
403.316(1)	405.227(6)	405.228(6)	405.329(3)(a)
405.330(3)(a)	416.223(a)	416.323(a)	420.216(1)
420.316(1)	445.225(a)	445.324(a)	456.323(a)
457.224(1)	457.325(a)	459.226	459.327
461.223(a)	475.322(a)	476.222(a)	476.322(a)
485.224(a)	485.322(a)	487.228(a)	488.223
489.211(1)	489.313(1)	570.323(a)	571.323(a)
572.323(a)	573.323(a)	574.323(a)	575.323(a)
576.323(a)	580.223(3)(a)	580.324	675.221(2)(d)
675.221(3)(c)	675.221(4)(f)	676.221(2)(c)(i)	676.221(2)(c)(ii)
676.221(3)(g)	679.228	771.222	802.223(a)
802.226A(2)(a)(ii)	804.225, table	804.322, table	835.223(a)
835.322(a)	836.223(a)	836.322(a)	837.223
837.322	838.223	838.322(a)	845.322(a)
846.322(a)	855.322(a)	856.322(1)(a)	857.322(1)(a)
858.221(a)	858.322(a)	864.223, table	864.224(a)
864.323(a)	884.224, table	885.224(a)	885.322(a)
886.225(a)	886.322(a)	887.223(a)	887.322(a)
888.215(1)	888.312(1)	890.222(a)	890.322(1)(a)
891.223(a)	891.322(1)(a)	892.223(a)	892.322(1)(a)
893.224(a)	893.322(1)(a)	988.222	988.322

 

The amendments substitute the following provisions with a new criterion that the applicant must satisfy the new Public Interest Criterion 4021 in Schedule 2 to the Principal Regulations.  These subclasses do not require the applicant to satisfy any other Public Interest Criteria and so a straight substitution of the 'valid passport' criteria in those subclasses is made to provide that the applicant must satisfy Public Interest Criterion 4021:

 

020.233	155.222	157.222	159.222
173.328	302.227	302.323	303.325
410.222	410.322	456.223	685.224
801.226	801.325	802.326	808.222
820.226	820.326	884.328	995.222
995.323

 

The amendments omit the following provisions from Schedule 2 to the Principal Regulations as they are no longer necessary.  These provisions contained only the 'valid passport' criterion and, because those measures are incorporated into new Public Interest Criterion 4021, these clauses are unnecessary and are omitted:

 

100.227	100.325	101.229	101.327
102.229	102.327	103.230	103.328
114.228	114.327	115.228	115.327
116.228	116.327	117.228	117.326
119.326	120.326	121.326	124.227
124.326	132.215	132.314	143.233
143.330	151.229C	151.329	160.325
161.325	162.325	163.325	164.325
165.325	173.230	175.325	176.325
186.215	186.315	187.215	187.315
188.215	188.314	189.217	189.314
190.218	190.314	300.228	300.327
302.324	303.228	303.326	309.230
309.327	401.218	401.318	402.218
402.318	403.216	403.318	405.229
405.331	416.229	416.327	420.218
420.318	445.229	445.326	456.329
457.228	457.329	459.229	459.330
461.227	475.325	476.227	476.325
485.229	485.325	487.234	488.225
489.213	489.315	570.334	571.334
572.334	573.334	574.334	575.334
576.335	580.230	580.328	675.224
676.225	679.231	771.224	802.227
804.229	804.327	835.228	835.326
836.228	836.326	837.227	837.326
838.228	838.326	845.324	846.324
855.325	856.325	857.325	858.226
858.325	864.231	864.330	884.230
885.230	885.325	886.231	886.325
887.229	887.325	888.217	888.314
890.225	890.324	891.226	891.324
892.226	892.324	893.227	893.324
988.225	988.324

 

Item [297] - Schedule 4, Part 1, after item 4020

 

This item inserts new Public Interest Criterion 4021 in Schedule 4 to Principal Regulations.

 

The purpose of this amendment is to make it a criterion for the grant of a visa that the applicant not hold a passport in a class of passports specified by the Minister.  The intention is that passports that Australia does not recognise for foreign policy or integrity reasons may be specified under new Public Interest Criterion 4021.  If the applicant cannot satisfy the criterion, the applicant cannot be granted a visa.

 

 

 

 

Schedule 3 - Amendments of Migration Regulations 1994 relating to skilled visas 

Item [1] - Regulation 1.03, definition of Occupations Requiring English List

This item omits the definition of 'Occupations Requiring English List' in
Regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

"Occupations Requiring English List" is currently defined in regulation 1.03 to mean the list mentioned in regulation 1.19.  Regulation 1.19 was omitted by the Migration Amendment Regulation 2012 (No. 2) (the "amending regulation") on 1 July 2012 as it referred to the awards for English proficiency under Schedule 6 which was also omitted on 1 July 2012.

The purpose of this item is to remove a redundant definition.

Item [2] - Paragraph 2.11(1)(a)

This item omits "made: and" and inserts "made; and" into paragraph 2.11(1)(a) of Division 2.2 of Part 2 of the Principal Regulations.

This item rectifies a minor typographical error in paragraph 2.11(1)(a) of the Principal Regulations by removing the colon after the words "has been made" and replacing it with a semi-colon.

Item [3] - Subregulation 2.26AC(3)

This item inserts the word "in" after the word "specified" into subregulation 2.26AC(3) of Division 2.6 of Part 2 of the Principal Regulations.

This item rectifies a minor typographical error in subregulation 2.26AC(3).

Item [4] - After paragraph 4.02(4)(l)

This item inserts a new paragraph 4.02(4)(la) into Division 4.1 of Part 4 of the Principal Regulations.

New paragraph 4.02(4)(la) provides that a decision to refuse to grant a Subclass 489 (Skilled - Regional (Provisional) visa to a non-citizen is Migration Review Tribunal (MRT)-reviewable if the non-citizen is outside Australia at the time of the visa application and the non-citizen was sponsored or nominated by an Australian citizen or permanent visa holder, a company or partnership that operates in Australia or a New Zealand citizen who holds a special category visa.

This item rectifies an unintended consequence arising from the introduction of the new Subclass 489 (Skilled - Regional (Provisional)) visa on 1 July 2012, whereby the sponsor of a Subclass 489 visa applicant cannot apply to the MRT for review of a decision to refuse the Subclass 489 visa if the applicant is outside Australia at the time of application.  This is because the new Subclass 489 visa does not distinguish between applications made in or outside Australia, with the unintended consequence that the sponsor does not have a review right if the applicant is offshore at the time of application. This also affects a secondary applicant who is outside Australia and who has not made a combined application with the primary applicant.

The purpose of this item is to ensure that sponsors of all applicants for Subclass 489 (Skilled - Regional (Provisional)) visas will be able to apply for merits review of a decision to refuse that visa.

Item [5] - After paragraph 4.02(5)(k)

This item inserts a new provision into subregulation 4.02(5) in Division 4.1 of Part 4 of the Principal Regulations to reflect new paragraph 4.02(4)(la).

This amendment is consequential to the amendment at Item [4] above and specifies that the sponsor or nominator has a review right in the case of a decision to which paragraph 4.02(4)(la) relates.

Item [6] - Subparagraph 5.19(3)(c)(i)

This item substitutes paragraph 5.19(3)(c)(i) in Division 5.3 of Part 5 to the Principal Regulations.

This amendment clarifies the policy intention that, in the three years immediately before the nominator made the application, the applicant must both have held a Subclass 457 visa for at least two years, and have been employed in the position in respect of which the person holds a Subclass 457 visa for at least two years (not including any period of unpaid leave).

New subparagraph 5.19(3)(c)(i) is also redrafted to correct a technical error whereby there was previously no text at the beginning of the subparagraph.

Item [7] - Subregulation 5.19(6), note

This item substitutes the words "reject an application" with the words "refuse an application" in the note after subregulation 5.19(6) of Division 5.3 of Part 5 of the Principal Regulations.

The purpose of this amendment is to achieve consistency with the wording in
paragraph 4.02(4)(e) (to which the note refers) and with similar wording across the Principal Regulations generally.

Item [8] - Subregulation 5.19(7), definition of associated entity

This item omits the definition of "associated entity" from subregulation 5.19(7) of Division 5.3 of Part 5 of the Principal Regulations.

This definition is unnecessary because the term "associated entity" is not used in
regulation 5.19.

Item [9] - Schedule 1, subitem 1104AA(1)

This item substitutes subitem 1104AA(1) of Schedule 1 to the Principal Regulations.

Subitem 1104AA(1) specifies the form which must be used to make a valid application for a Business Skills - Business Talent (Permanent) (Class EA) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [10] - Schedule 1, paragraph 1104AA(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1104AA(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1104AA(3)(b) sets out where an applicant may be when making an application for a Business Skills - Business Talent (Permanent) (Class EA) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [11] - Schedule 1, subitem 1104BA(1)

This item substitutes subitem 1104BA(1) of Schedule 1 to the Principal Regulations.

Subitem 1104BA(1) specifies the form which must be used to make a valid application for a Business Skills (Permanent) (Class EC) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [12] - Schedule 1, paragraph 1104BA(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1104BA(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1104BA(3)(b) sets out where an applicant may be when making an application for a Business Skills (Permanent) (Class EC) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [13] - Schedule 1, paragraph 1104BA(3)(c)

This item includes the words "seeking to satisfy the primary criteria" in
paragraph 1104BA(3)(c) of Schedule 1 to the Principal Regulations.

The purpose of this item is to clarify the policy intention that only primary applicants for the Subclass 888 (Business Innovation and Investment (Permanent)) visa are required to be nominated by a State or Territory government agency. This item ensures that the paragraph only applies to applicants seeking to satisfy the primary criteria for the subclass.

Item [14] - Schedule 1, subitem 1114B(1)

This item substitutes subitem 1114B(1) of Schedule 1 to the Principal Regulations.

Subitem 1114B(1) specifies the form which must be used to make a valid application for an Employer Nomination (Permanent) (Class EN) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [15] - Schedule 1, paragraph 1114B(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1114B(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1114B(3)(b) sets out where an applicant may be when making an application for a Employer Nomination (Permanent) (Class EN) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [16] - Schedule 1, subitem 1114C(1)

This item substitutes subitem 1114C(1) of Schedule 1 to the Principal Regulations.

Subitem 1114C(1) specifies the form which must be used to make a valid application for a Regional Employer Nomination (Permanent) (Class RN) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [17] - Schedule 1, paragraph 1114C(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1114C(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1114C(3)(b) sets out where an applicant may be when making an application for a Regional Employer Nomination (Permanent) (Class RN) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [18] - Schedule 1, subitem 1137(1)

This item substitutes subitem 1137(1) of Schedule 1 to the Principal Regulations.

Subitem 1137(1) specifies the form which must be used to make a valid application for a Skilled - Independent (Permanent) (Class SI) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

 

Item [19] - Schedule 1, paragraph 1137(3)(b)

This item omits the words "outside of Australia" and insert the words "outside Australia" into paragraph 1137(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1137(3)(b) sets out where an applicant may be when making an application for a Skilled - Independent (Permanent) (Class SI) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [20] - Schedule 1, subitem 1138(1)

This item substitutes subitem 1138(1) of Schedule 1 to the Principal Regulations.

Subitem 1138(1) specifies the form which must be used to make a valid application for a Skilled - Nominated (Permanent) (Class SN) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [21] - Schedule 1, paragraph 1138(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1138(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1138(3)(b) sets out where an applicant may be when making an application for a Skilled - Nominated (Permanent) (Class SN) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [22] - Schedule 1, subitem 1202B(1)

This item substitutes subitem 1202B(1) of Schedule 1 to the Principal Regulations.

Subitem 1202B(1) specifies the form which must be used to make a valid application for a Business Skills (Provisional) (Class EB) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [23] - Schedule 1, paragraph 1202B(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1202B(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1202B(3)(b) sets out where an applicant may be when making an application for a visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [24] - Schedule 1, subitem 1230(1)

This item substitutes subitem 1230(1) of Schedule 1 to the Principal Regulations.

Subitem 1230(1) specifies the form which must be used to make a valid application for a Skilled - Regional Sponsored (Provisional) (Class SP) visa.

The purpose of this item is to include the word "(Internet)" after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

Item [25] - Schedule 1, paragraph 1230(3)(b)

This item omits the words "outside of Australia" and inserts the words "outside Australia" into paragraph 1230(3)(b) of Schedule 1 to the Principal Regulations.

Paragraph 1230(3)(b) sets out where an applicant may be when making an application for a Skilled - Regional Sponsored (Provisional) (Class SP) visa.

The purpose of this item is to maintain consistency of expression in criteria which are common across certain classes of visa in Schedule 1 to the Principal Regulations.

Item [26] - Schedule 1, subitem 1301(1)

This item omits certain references to form numbers in subitem 1301(1) of Schedule 1 to the Principal Regulations and inserts the same form numbers followed by the word "(Internet)".

This item is consequential to items [9], [11], [14], [16], [18], [20], [22] and [24] of this Schedule, which include the word "(Internet)" after the form numbers to make it clear to clients that the form which is required by the relevant Schedule 1 provision for a valid application is actually an internet-based form (required for internet applications) rather than a paper form.

Item [27] - Schedule 1, subitem 1303(1)

This item omits certain references to form numbers in subitem 1303(1) of Schedule 1 to the Principal Regulations and inserts the same form numbers followed by the word "(Internet)".

This item is consequential to items [9], [11], [14], [16], [18], [20], [22] and [24] of this Schedule, which includes the word "(Internet)" after the form numbers to make it clear to clients that the form which is required by the relevant Schedule 1 provision for a valid application is actually an internet-based form (required for internet applications) rather than a paper form.

Item [28] - Schedule 2, paragraphs 132.232(1)(a) to (d)

This item substitutes paragraphs 132.232(1)(a) to (d) of Schedule 2 to the Principal Regulations.

Subdivision 132.23 prescribes the criteria for the Venture Capital Entrepreneur stream which was inserted into the Subclass 132 (Business Talent) visa on 1 July 2012 by the amending regulation. This stream implements the policy objective of facilitating entry to Australia for entrepreneurs who have sourced venture capital funding in Australia.

The purpose of this item is to include the words "in Australia" in each paragraph to ensure that venture capital funding sourced by applicants seeking to satisfy the primary criteria for the grant of a Subclass 132 visa in the Venture Capital Entrepreneur stream will be used for a business in Australia.

Item [29] - Schedule 2, clause 132.411, including the note

This item substitutes clause 132.411 in Schedule 2 to the Principal Regulations.

Clause 132.411 relates to the location of the applicant at the time a Subclass 132 (Business Talent) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this item is to reword the clause to achieve consistency across the Principal Regulations.

Item [30] - Schedule 2, clause 186.411, including the note

This item substitutes clause 186.411 in Schedule 2 to the Principal Regulations.

Clause 186.411 relates to the location of the applicant at the time a Subclass 186 (Employer Nomination Scheme) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [31] - Schedule 2, clause 187.411, including the note

This item substitutes clause 187.411 in Schedule 2 to the Principal Regulations.

Clause 187.411 relates to the location of the applicant at the time a Subclass 187 (Regional Sponsored Migration Scheme) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [32] - Schedule 2, paragraphs 188.222(2)(a) to (c)

This item substitutes paragraphs 188.222(2)(a) to (c) in Schedule 2 to the Principal Regulations.

The Subclass 188 (Business Innovation and Investment (Provisional)) visa was inserted into the Principal Regulations on 1 July 2012 by the amending regulation. Applicants seeking to satisfy the primary criteria for the Business Innovation stream must satisfy the points test in Schedule 7A to the Principal Regulations. The correct way to refer to a part in
Schedule 7A is, using the second part as an example, "Part 7A.2".

The purpose of this item is to change the references to the respective parts of Schedule 7A so that they appear in the correct form.

Item [33] - Schedule 2, clause 188.226

This item inserts the words "At the time of invitation" into clause 188.226 of
Schedule 2 to the Principal Regulations.

It is the policy intention that the criterion in clause 188.226 must be satisfied at the time the applicant is invited, in writing, by the Minister to apply for a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Business Innovation stream. The purpose of the item is to amend the criterion so that it relates to the value of assets held at the time of invitation.

Item [34] - Schedule 2, paragraphs 188.242(2)(a) to (c)

This item substitutes paragraphs 188.242(2)(a) to (c) in Schedule 2 to the Principal Regulations.

The Subclass 188 (Business Innovation and Investment (Provisional)) visa was inserted into the Principal Regulations on 1 July 2012 by the amending regulation. Applicants seeking to satisfy the primary criteria for the Business Innovation stream must satisfy the points test in Schedule 7A to the Principal Regulations. The correct way to refer to a part in
Schedule 7A is, using the second part as an example, "Part 7A.2".

The purpose of this item is to change the references to the respective parts of Schedule 7A so that they appear in the correct form.

Item [35] - Schedule 2, clause 188.411, including the note

This item substitutes clause 188.411 in Schedule 2 to the Principal Regulations.

Clause 188.411 relates to the location of the applicant at the time a Subclass 188 (Business Innovation and Investment (Provisional)) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [36] - Schedule 2, clause 189.411, including the note

This item substitutes clause 189.411 in Schedule 2 to the Principal Regulations.

Clause 189.411 relates to the location of the applicant at the time a Subclass 189 (Skilled - Independent) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [37] - Schedule 2, clause 190.411, including the note

This item substitutes clause 190.411 in Schedule 2 to the Principal Regulations.

Clause 190.411 relates to the location of the applicant at the time a Subclass 190 (Skilled - Nominated) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [38] - Schedule 2, clause 489.411, including the note

This item substitutes clause 489.411 in Schedule 2 to the Principal Regulations.

Clause 489.411 relates to the location of the applicant at the time a Subclass 489 (Skilled - Regional (Provisional)) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

Item [39] - Schedule 2, subclause 888.222(2)

This item inserts a reference to the Business Skills (Residence) (Class DF) visa into subclause 888.222(2) in Schedule 2 to the Principal Regulations.

Subclause 888.222(2) is intended to prevent provisional visa holders from gaining a permanent visa where they have bought and operated a business which has recently been used by the previous owner to obtain a permanent visa under the Business Skills program.

The purpose of the item is to ensure that the provision refers to the complete suite of Business Skills visas which is intended to be covered by the provision.  

Item [40] - Schedule 2, subclause 888.225(4)

This item inserts the words "in Australia" into subclause 888.225(4) in Schedule 2 to the Principal Regulations.

The purpose of this item is to reflect the policy intention that the net business and personal assets of the applicant must be in Australia in order to satisfy the criterion.

 

Item [41] - Schedule 2, clause 888.226

This item substitutes clause 888.226 in Schedule 2 to the Principal Regulations.

It is the policy intention that, if exceptional circumstances exist, the applicant need meet only one of the requirements in subclauses 888.225(2) to (4) or subclause 888.225(5).

The purpose of the item is to allow an applicant to meet the exceptional circumstances criterion if they meet the alternative requirement which is set out in subclause 888.225(5).

Item [42] - Schedule 2, clause 888.411, including the note

This item substitutes clause 888.411 in Schedule 2 to the Principal Regulations.

Clause 888.411 relates to the location of the applicant at the time a Subclass 888 (Business Innovation and Investment (Permanent)) visa is granted. The wording of the provision, as inserted by the amending regulation, is inconsistent with wording of other provisions of this type in other parts of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to reword the clause to achieve consistency across the Principal Regulations.

 

Schedule 4 - Amendments of Migration Regulations 1994 relating to tourist visas

Item [1] - Schedule 2, paragraph 676.613(b)

This item substitutes paragraph 676.613(b) of Schedule 2 to the Principal Regulations.

The amendment provides that, in addition to condition 8503 which may currently be imposed on a Subclass 676 (Tourist) visa, condition 8501 and new condition 8558 may be also be imposed.  Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.  New condition 8558 is inserted by item [3] below and provides that the visa holder must not stay in Australia for more than 12 months in any period of 18 months. 

The purpose of this amendment is to ensure the integrity of the visitor visa program while facilitating longer stays in Australia for parents of Australian citizens and Australian permanent residents who meet the requirements for the grant of a Subclass 676 visa.  Longer visa validity and stay periods will be implemented for this cohort of visa applicant under policy in accordance with existing legislative provisions.  Allowing new condition 8558 to be imposed on holders of this more generous visa product is intended to prevent the holder from establishing "de facto" residence in Australia.  Allowing condition 8501 to be imposed mitigates the health risks that may arise with older visitors staying in Australia for extended periods. 

It is intended that these two discretionary conditions may be imposed on Subclass 676 visas granted with a longer visa validity and stay period on the basis that the holder is the parent of an Australian citizen or permanent resident.

 

 

Item [2] - Schedule 4, item 4065A, column 3

This item substitutes "8101, 8201 and 8558" in item 4065A of column 3 of the table in Part 2 of Schedule 4 to the Principal Regulations.

Schedule 4 contains the public interest criteria that may form part of the criteria in Schedule 2 to the Principal Regulations for the grant of a visa.  This includes Public Interest Criterion (PIC) 4013, which provides for applicants affected by a risk factor in certain circumstances.  Paragraph 4013(2)(b) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Migration Act 1958 (the Act) because the person did not comply with a condition specified in Part 2 of Schedule 4 in relation to a subclass specified in that Part.  A consequence of not satisfying PIC 4013 is that the applicant cannot be granted a visa to which that PIC applies.  

The amendment lists new condition 8558 in relation to the Subclass 676 (Tourist) visa in Part 2 of Schedule 4, with the effect that an applicant for a visa may be affected by a risk factor if the Subclass 676 visa previously held by the person was cancelled because the person did not comply with condition 8558.  This is in addition to conditions 8101 and 8201 which are currently listed.

This is consistent with the treatment of applicants who previously had a Subclass 676 visa cancelled because they did not have a genuine intention to visit Australia temporarily as a visitor, as provided for in paragraph 2.43(1)(j) of the Principal Regulations.  These applicants are also affected by a risk factor in accordance with paragraph 4103(2)(d) of Schedule 4 to the Principal Regulations.

Item [3] - Schedule 8, after clause 8557

This item inserts new condition 8558 in Schedule 8 to the Principal Regulations.

New condition 8558 provides that the visa holder must not stay in Australia for more than 12 months in any period of 18 months.

New condition 8558 may be imposed on Subclass 676 (Tourist) visa applicants who are granted a more generous visa product because they are the parent of an Australian citizen or an Australian permanent resident, for the purpose stated in relation to item [1] of this Schedule.

Schedule 5 - Amendments of Migration Regulations 1994 relating to visas and charges

The purpose of the amendments made by Schedule 5 is to implement the new visa evidence charge.

The visa evidence charge is imposed by the Migration (Visa Evidence) Charge Act 2012, which enables a charge to be payable for the production of prescribed evidence of a visa. The Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012 amends the Act to implement this new charge and to provide a framework within which the visa evidence charge will operate. This framework includes powers to prescribe regulations relating to various aspects of the new scheme.  This schedule would make regulations under these new powers, as well as making a number of consequential amendments.

As outlined in the explanatory memorandum to the Migration (Visa Evidence) Charge (Consequential Amendments) Bill 2012, the visa evidence charge is designed to encourage clients to reconsider their need to have visa evidence. The amendments in this schedule give effect to this policy intention.

Item [1] - Subregulation 2.16(2), including the subheading and note

This item substitutes subregulation 2.16(2) of Division 2.3 of Part 2 to the Principal Regulations and inserts new subregulations 2.16(2A), 2.16(2B), 2.16(2C) and 2.16(2D) and a note.

Previous subregulation 2.16(2) provided that the Minister must notify the applicant of the grant of the visa in one of the following ways:

• if the visa is a bridging visa granted at the same time as a substantive visa - by:
• notifying the applicant of the grant of the substantive visa; or
• giving the applicant evidence of the substantive visa;
• if the visa:
• is a special category visa; and
• has been granted using an authorised system in accordance with an arrangement made under subsection 495A(1) of the Act - by a general notice in immigration clearance;
• in any other case - by:
• telling the applicant orally that the visa has been granted; or
• notifying the applicant by one of the methods specified in section 494B of the Act; or
• giving the applicant evidence of the visa.

In addition, there was a note following subregulation 2.16(2) which states that if the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of that method.

Section 494B of the Act lists the methods by which the Minister is to give documents to a person, where a provision of the Act or Principal Regulations requires or permits the Minister to give a document to a person and states that the Minister must do so by one of the methods specified in section 494B of the Act.

Previous subregulation 2.16(2) of the Principal Regulations allowed, in some circumstances, the option to notify the applicant of the grant of the visa by giving the applicant evidence of the visa.

The effect of the amendments in Item [1] of Schedule 6 to the Regulation is to remove the option of notifying the applicant of the grant of the visa by giving the applicant evidence of the visa. The purpose of this amendment is to ensure that a person receives notification of the grant of a visa without having to pay the visa evidence charge. This is a consequential amendment as a result of the amendments made by Item [2] below, which substitute Division 2.4 of Part 2 of the Principal Regulations to insert regulations for the purpose of implementing the new visa evidence charge scheme.

New subregulation 2.16(2) of the Principal Regulations provides that if the visa is a bridging visa granted at the same time as a substantive visa, the Minister must notify the applicant of the grant of bridging visa by notifying the applicant of the grant of the substantive visa.

The purpose of new subregulation 2.16(2) is to preserve the effect of current subparagraph 2.16(2)(a)(i) of Division 2.3 of Part 2 of the Principal Regulations.

New subregulation 2.16(2A) of the Principal Regulations provides that if the visa:

• is a special category visa; and
• has been granted using an authorised system in accordance with an arrangement made under subsection 495A(1) of the Act;

the Minister must notify the applicant of the grant of the visa by a general notice in immigration clearance.

The purpose of new subregulation 2.16(2A) is to preserve the effect of paragraph 2.16(2)(aa) of the Principal Regulations.

New subregulation 2.16(2B) of the Principal Regulations provides that if the visa:

• is a special category visa; and
• has not been granted using an authorised system in accordance with an arrangement made under subsection 495(1) of the Act;

the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant's passport by an officer.

The effect of new subregulation 2.16(2B) is to provide that the Minister must notify the grant of a special category visa that has not been granted using an authorised system in accordance with an arrangement made under subsection 495(1) of the Act by way of an imprint stamped in the applicant's passport by an officer.

Previous subparagraph 2.17(1)(b)(ii) of Division 2.4 of Part 2 of the Principal Regulations and clause 444.712 of Schedule 2 to the Principal Regulations provided that evidence of a special category visa may be provided by way of an imprint stamped in the applicant's passport by an officer.

Subparagraph 2.17(1)(b)(ii) is substituted by Item [2] of Schedule 6 to Regulation and clause 444.712 is omitted by Item [5] of Schedule 6 to the Regulation.

The purpose of new subregulation 2.16(2B) is to continue the notification of special category visas that have not been granted using an authorised system in accordance with an arrangement made under subsection 495(1) of the Act by way of an imprint stamped in the applicant's passport by an officer. However, an imprint stamped in the applicant's passport by an officer will not be evidence of a visa. New regulation 2.19A in Item [2] of Schedule 6 to the Regulation does not prescribe an imprint stamped in the applicant's passport by an officer as evidence of a visa.

New subregulation 2.16(2C) of the Principal Regulations provides that if the visa is a Subclass 834 (Permanent Resident of Norfolk Island) visa, the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant's passport by an officer.

The effect of new subregulation 2.16(2C) is to provide that if the visa is a Subclass 834 (Permanent Resident of Norfolk Island) visa, the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant's passport by an officer.

Previous subparagraph 2.17(1)(b)(ii) of Division 2.4 of Part 2 of the Principal Regulations and clause 834.712 of Schedule 2 to the Principal Regulations provided that evidence of a Subclass 834 (Permanent Resident of Norfolk Island) visa may be provided by way of an imprint stamped in the applicant's passport by an officer.

Subparagraph 2.17(1)(b)(ii) is substituted by Item [2] of Schedule 6 to the Regulation and clause 834.712 is omitted by Item [5] of Schedule 6 to the Regulation.

The purpose of new subregulation 2.16(2C) is to continue the notification of Subclass 834 (Permanent Resident of Norfolk Island) visas by way of an imprint stamped in the applicant's passport by an officer. However, an imprint stamped in the applicant's passport by an officer will not be evidence of a visa. New regulation 2.19A in Item [2] of Schedule 6 to the Regulation does not prescribe an imprint stamped in the applicant's passport by an officer as evidence of a visa.

New subregulation 2.16(2D) of the Principal Regulations provides that if none of subregulations 2.16(2) to 2.16(2C) applies, the Minister must notify the applicant of the grant of the visa by:

• telling the applicant orally that the visa has been granted; or
• notifying the applicant by one of the methods specified in section 494B of the Act.

The purpose of new subregulation 2.16(2D) is to preserve current subparagraphs 2.16(2)(b)(i) and 2.16(2)(b)(ii) of the Principal Regulations.

A new note is inserted following subregulation 2.16(2) of Part 2 of the Principal Regulations.

The new note provides that if the Minister gives a person a document by a method specified in section 494B of the Act, the person would be taken to have received the document at the time specified in section 494C of the Act in respect of the method.

The new note maintains the current note following current subregulation 2.16(2) of the Principal Regulations.

Item [2] - Division 2.4

This item substitutes Division 2.4 of Part 2 of the Principal Regulations.

Division 2.4 previously provided the ways of giving evidence of a visa and the cases in which evidence of a visa need not be given. The intention of substituting this Division is to replace the previous provisions relating to visa evidence with regulations which implement the new visa evidence charge.

Previous Division 2.4 of Part 2 of the Principal Regulations contained regulations 2.17 and 2.19.

New Division 2.4 of Part 2 of the Principal Regulations contains regulations 2.17, 2.18, 2.19, 2.19A, 2.19B and 2.19C.

Previous Regulation 2.17 Ways of giving evidence of a visa

Previous regulation 2.17 regulated the way evidence of the grant of a visa was given and the contents of the evidence of the grant of a visa.

Previous Regulation 2.19 Evidence of visa need not be given in certain cases

Previous regulation 2.19 provided that no evidence of the grant of a visa needed to be given:

• if the relevant Part of Schedule 2 so provided; or
• if the relevant Part of Schedule 2 required the evidence to be placed in a passport, and the holder of the visa:
• did not produce a passport to an officer; or
• produced to an officer a document that the Minister had directed, under subsection 71(3) of the Act, was not to be taken to be a passport for the purposes of the clause of Schedule 2 under which evidence is to be given of the visa;

until the holder produces a passport to an officer; or

• if the visa:
• was not a Return (Residence) (Class BB) visa; and
• was granted on the basis of an oral application.

New Regulation 2.17 Form of evidence

New subregulation 2.17(1) of the Principal Regulations provides that, for subsection 70(1) of the Act, the form of evidence of a visa granted to a non-citizen is a label affixed to the non-citizen's valid passport by an officer. A note following new subregulation 2.17(1) states that, under subsection 70(1) of the Act, the label is a prescribed form of evidence of the visa.

Subsection 70(1) of the Act provides that certain persons may request to be given a prescribed form of evidence of a visa at any time while the visa is in effect.

The purpose of new subregulation 2.17(1) is to prescribe a label as a form of evidence of a visa for subsection 70(1) of the Act.

New subregulation 2.17(2) of Division 2.4 of Part 2 of the Principal Regulations provides that if the visa is a substantive visa (other than a transitional visa), the label must include:

• a statement of the period for which the visa is in effect; and
• the class to which the visa belongs, identified by the 2-letter code specified in the heading of the relevant item of Schedule 1; and
• the subclass to which the visa belongs, identified by the 3-digit code of the relevant Part of Schedule 2; and
• if the visa allows the holder to travel to and enter Australia - a statement of that fact.

The purpose of new subregulation 2.17(2) is to specify what must be included on a label that is provided as evidence of a visa. This maintains the intention of subregulation 2.17(2) of the Principal Regulations. 

New subregulation 2.17(3) of the Principal Regulations provides that if the Minister has given to the non-citizen a written statement of the conditions (if any) to which the grant of the visa is subject, it is not necessary for the label to set out those conditions.

The purpose of new subregulation 2.17(3) is to make it clear that the label is not required to contain the conditions to which the grant of the visa is subject provided the person has been given a written statement of the conditions. This maintains the intention of subregulation 2.17(5) of the Principal Regulations.

New Regulation 2.18 Way of requesting evidence of a visa

New subregulation 2.18(1) of the Principal Regulations provides that for paragraph 70(2)(a) of the Act, this regulation sets out ways in which a person may make a request to be given a prescribed form of evidence of a visa. A note following new subregulation 2.18(1) provides that, under paragraph 70(2)(c) of the Act, the request must be accompanied by the amount of the visa evidence charge payable in relation to the request.

Paragraph 70(2)(a) of the Act provides that the request for evidence of a visa must be made in the prescribed way.

New subregulation 2.18(2) of the Principal Regulations provides that a request for evidence of a visa may be made in writing.

A note following new subregulation 2.18(2) provides that Forms 1405 or 1405E are available for this purpose.

The purpose of new subregulation 2.18(2) is to specify that a request for evidence of a visa may be made in writing and Forms 1405 and 1405E may be used to request evidence of a visa.

New subregulation 2.18(3) of the Principal Regulations provides that, if the person is at an office of Immigration in Australia, the request may be made orally.

The purpose of new subregulation 2.18(3) is to provide that a request for evidence of a visa may be made orally if the person is at an office of Immigration in Australia.

New subregulation 2.18(4) of the Principal Regulations provides that, if the person is outside Australia at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth, the request may be made orally.

The purpose of new subregulation 2.18(4) is to provide that a request for evidence of a visa may be made orally if the person is outside Australia and at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth.

New subregulation 2.18(5) of the Principal Regulations provides that, if the person is outside Australia, but not at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth, the request may be made orally by contacting a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.

The purpose of new subregulation 2.18(5) is to provide that a request for evidence of a visa may be made orally by contacting a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia, if the person is outside Australia but not at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth, provided all other requirements for making the request are satisfied.

New Regulation 2.19 Place for lodging request for evidence of a visa

New subregulation 2.19(1) of the Principal Regulations provides that, for paragraph 70(2)(b) of the Act, this regulation sets out the places at which a person may lodge a request to be given a prescribed form of evidence of a visa. A note following new subregulation 2.19(1) provides that under paragraph 70(2)(c) of the Act, the request must be accompanied by the amount of the visa evidence charge payable in relation to the request.

Paragraph 70(2)(b) of the Act provides that the request for evidence of a visa must be lodged at the prescribed place.

New subregulation 2.19(2) of the Principal Regulations provides that, if the person proposes to lodge the request for evidence of a visa in Australia, the places are an office of Immigration in Australia and another place specified by the Minister in an instrument in writing made for this subregulation that relates to the person. A note following new subregulation 2.19(2) would provide that the instrument may specify a place by reference to the person's location in Australia, by reference to the kind of visa, or by reference to another matter.

The purpose of new subregulation 2.19(2) is to provide that a request for evidence of a visa in Australia may be lodged at either an office of Immigration in Australia or additional places specified by the Minister in an instrument in writing. This is to ensure that any future changes to lodgement options may be easily updated in line with business requirements.

New subregulation 2.19(3) of the Principal Regulations provides that, if the person proposes to lodge the request for evidence of a visa outside Australia, the place is a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.

The purpose of new subregulation 2.19(3) is to provide that a request for evidence of a visa may be lodged outside Australia at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.

New Regulation 2.19A Visa evidence charge

New subregulation 2.19A(1) of the Principal Regulations provides that, for subsection 71(2) of the Act, this regulation sets out the amount of visa evidence charge that must accompany a request by a person to be given a prescribed form of evidence of a visa.

Subsection 71(2) of the Act provides that the amount of the visa evidence charge is the prescribed amount which must not exceed the visa evidence charge limit for the request.  The visa evidence charge limit is provided in the Migration (Visa Evidence) Charge Act 2012.      

New subregulation 2.19A(2) of the Principal Regulations provides that the amount of the visa evidence charge is $70.

Paragraph 71(3)(f) of the Act provides that regulations made for the purposes of subsection 71(2) of the Act may specify the circumstances where the amount of the visa evidence charge is nil.

New subregulation 2.19A(3) of the Principal Regulations provides that, despite subregulation 2.19A(2), if:

• the request relates to a visa mentioned in the table that the person holds; and
• the request is the first made by or for the person in relation to the particular visa the person holds;

the amount is nil.

A note following new subregulation 2.19A provides that a person may hold 2 or more visas of the same subclass over time. This subregulation applies to the first request in relation to each individual visa in the series.

New subregulation 2.19A(3) includes a table that sets out the visa subclasses for which the visa evidence charge is nil under the subregulation.  The visa evidence charge for these visa subclasses is nil because humanitarian, emergency, bilateral foreign relations or Australian interests apply.  The visa subclasses listed in that table are set out below.  

 

Visa

Subclass 050 (Bridging (General)) visa

Subclass 051 (Bridging (Protection Visa Applicant)) visa

Subclass 060 (Bridging F) visa

Subclass 070 (Bridging (Removal Pending)) visa

Subclass 200 (Refugee) visa

Subclass 201 (In-country Special Humanitarian) visa

Subclass 202 (Global Special Humanitarian) visa

Subclass 203 (Emergency Rescue) visa

Subclass 204 (Woman at risk) visa

Subclass 302 (Emergency (Permanent Visa Applicant)) visa

Subclass 303 (Emergency (Temporary Visa Applicant)) visa

Subclass 403 (Temporary Work (International Relations)) visa for which the holder:   *         satisfied the requirements of Subdivision 403.22, 403.23 or 403.24 of Schedule 2; or   *         was a member of the family unit of a person who satisfied the requirements of Subdivision 403.22 or 403.23 of Schedule 2.

Subclass 406 (Government Agreement) visa

Subclass 415 (Foreign Government Agency) visa

Subclass 416 (Special Program) visa for which the holder satisfied the requirements of paragraph 416.222(d) of Schedule 2

Subclass 426 (Domestic worker (Temporary) - Diplomatic or Consular) visa

Subclass 448 (Kosovar Safe Haven (Temporary)) visa

Subclass 449 (Humanitarian Stay (Temporary)) visa

Subclass 574 (Postgraduate Research Sector) visa

Subclass 773 ( Border)

Subclass 786 (Temporary (Humanitarian Concern)) visa

Subclass 800 (Territorial Asylum) visa

Subclass 851 (Resolution of Status) visa

Subclass 852 (Witness Protection (Trafficking) (Permanent)) visa

Subclass 866 (Protection) visa

A criminal justice entry visa

A criminal justice stay visa

A student visa for which the amount of visa application charge was nil on the basis that the requirement in sub-subparagraphs 1222(2)(a)(i)(A), 1222(2)(a)(i)(D) or 1222(2)(a)(i)(E) of Schedule 1 was satisfied

New subregulation 2.19A(4) of the Principal Regulations provides that despite subregulation 2.19A(2), if the request relates to a visa mentioned in the table that the person holds, the amount is nil.  New subregulation 2.19A(4) includes a table that sets out the visa subclasses for which the visa evidence charge is nil under this subregulation.   

The visa evidence charge has been specified as nil for the Diplomatic temporary visa and a range of visa subclasses where the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 applies. The visas for which the visa evidence charge is nil under subregulation 2.19A(4) are listed in the table below.

 

Visa

Subclass 995 (Diplomatic (Temporary)) visa

A visa for which the amount of visa application charge was nil on the basis that: *    the applicant was: o acting as a representative of a foreign government; or o a person to whom privileges and immunities are accorded under the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 and the Foreign Minister recommended the applicant for the grant of the visa.

A visa for which the amount of visa application charge was nil on the basis that the applicant was a spouse, de facto partner or dependent child of a person where: *    the applicant was: o acting as a representative of a foreign government; or o a person to whom privileges and immunities are accorded under the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 and the Foreign Minister recommended the applicant for the grant of the visa.

New subregulation 2.19B Circumstances in which prescribed form of evidence of a visa may be requested

New subregulation 2.19B(1) of the Principal Regulations provides that, for paragraph 71B(1)(a) of the Act, a circumstance in which a prescribed form of evidence of a visa may be requested is that the visa is not:

• a Subclass 834 (Permanent Resident of Norfolk Island) visa: or
• a Subclass 956 Electronic Travel Authority (Business Entrant - Long Validity) visa; or
• a Subclass 976 (Electronic Travel Authority (Visitor)) visa; or
• a Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity)) visa; or
• a special category visa.

Paragraph 71B(1)(a) of the Act provides that the regulations may make provision for, or in relation to, the circumstances in which a prescribed form of evidence of a visa may be requested or given. The circumstances may include that, to be able to request evidence of a visa, a person holds a visa other than a prescribed visa.

Evidence of a visa is not provided for a Subclass 834 (Permanent Resident of Norfolk Island) visa, a Subclass 956 Electronic Travel Authority (Business Entrant - Long Validity) visa, a Subclass 976 (Electronic Travel Authority (Visitor)) visa, a Subclass 977 (Electronic Travel Authority (Business Entrant - Short Validity)) visa or a special category visa. The purpose of imposing the visa evidence charge is to reduce the volume of visa evidence that is provided to visa holders. Introducing new visas for which evidence of a visa can be requested and given would go against the policy of reducing visa evidence by introducing new visas for which a visa evidence can be issued.

New regulation 2.19C Refund of visa evidence charge

New subregulation 2.19C(1) of the Principal Regulations provides that, for paragraph 71B(1)(d) of the Act, this regulation sets out arrangements for the refund to a person (in whole or in part) of an amount of visa evidence charge.

Paragraph 71B(1)(d) of the Act provides that the regulations may make provision for, or in relation to, the remission, refund or waiver (in whole or in part) of the charge.

New subregulation 2.19C(2) of the Principal Regulations provides that the person must be:

• the person who has paid the visa evidence charge (the payer); or
• the personal representative of a payer who has died or has a serious physical or mental incapacity; or
• the trustee of the estate of a payer who is a bankrupt within the meaning of the Bankruptcy Act 1966.

The purpose of new subregulation 2.19C(2) is to specify the person who the refund of the visa evidence charge can be paid to.

New subregulation 2.19C(3) of the Principal Regulations provides that for subregulation 2.19C(2):

• if a payment of visa evidence charge is made by cheque, the drawer of the cheque is the payer; and
• if a payment of visa evidence charge is made by a credit or debit card, the person named on the card is the payer; and
• if a payment of visa evidence charge is made in cash, the person presenting the cash is the payer; and
• if a payment of visa evidence charge is made by bank cheque, bank draft, money order, or other similar instrument, the purchaser of the instrument is the payer.

The purpose of new subregulation 2.19C(3) is to specify who the payer is for new subregulation 2.19C(2).

New subregulation 2.19C(4) of the Principal Regulations provides that, for subregulation 2.19C(2), a person is taken to be the personal representative of a payer if:

• the person provides satisfactory evidence to the Minister that the person is the personal representative of the payer; and
• the Minister is satisfied, on the basis of the evidence provided by the person, that the person is the personal representative of the payer.

The purpose of new subregulation 2.19C(4) of the Principal Regulations is to specify who the personal representative of a payer is for new subregulation 2.19C(2).

New subregulation 2.19C(5) of the Principal Regulations provides that the Minister must:

• receive a request in writing from the person for a refund; or
• consider it is reasonable in the circumstances to refund the amount on a request that is not in writing.

The purpose of new subregulation 2.19C(5) is to provide that the request for a refund of the visa evidence charge must be in writing unless the Minister considers it reasonable in the circumstances to refund the amount on a request that is not in writing.

Situations where it may be reasonable in the circumstances to refund the amount on a request that is not in writing would include where an officer considers that the particular circumstances applying to the request do not warrant the imposition of a requirement for a written request.

New subregulation 2.19C(6) of the Principal Regulations provides that the Minister must refund an amount of visa evidence charge:

• if the visa ceased to be in effect before the evidence was given; or
• if the request for the evidence was withdrawn before the evidence was given; or
• if:
• the evidence that was requested was a visa label; and
• the visa label was to be affixed to a passport or other travel document to which a direction under subsection 71B(2) of the Act applied; or
• if the amount was paid by mistake or otherwise should not have been paid.

The purpose of new subregulation 2.19C(6) is to provide the circumstances where a refund must be provided.

The reason for a refund being provided where the visa has ceased to be in effect before the evidence was given is that subsection 70(1) of the Act provides that a request to be given a prescribed form of evidence of a visa at any time while the visa is in effect.

The reason for a refund being provided where the request was withdrawn before the evidence was given is because an officer is no longer required to give that person evidence under subsection 71A(2) of the Act and the person should therefore not have to pay for evidence that will not be provided.

The reason for a refund being provided where the evidence that was requested was a visa label and the visa label was to be affixed to a passport or other travel document to which a direction under subsection 71B(2) of the Act applied is that a visa label cannot be provided for a passport or other travel document to which a direction under subsection 71B(2) of the Act applies.

Subsection 71B(2) of the Act provides that if the regulations provide that a prescribed form of evidence of a visa may be given by endorsing a valid passport, or other valid travel document, that has been issued to:

• a non-citizen; or
• another non-citizen associated with that non-citizen;

the Minister may direct, in writing, that a specified document is not to be taken to be a passport or travel document for the purposes of the regulations.

Subsection 71B(2) of the Act provides that if the regulations provide that a prescribed form of evidence of a visa may be given by endorsing a valid passport, or other valid travel document, that has been issued to:

*    a non-citizen; or

*    another non-citizen associated with that non-citizen;

the Minister may direct, in writing, that a specified document is not to be taken to be a passport or travel document for the purposes of the regulations. The documents that would be the subject of this direction would be those passports or travel documents that Australia does not recognise for foreign policy or integrity reasons.

The reason for providing a refund where the amount was paid by mistake or otherwise should not have been paid is to allow a refund to be paid where the Commonwealth was not entitled to the payment.

New subregulation 2.19C(7) of the Principal Regulations provides that the Minister must pay a refund in:

• Australian currency; or
• if the amount to which the refund relates was paid in another currency - the other currency.

The purpose of new subregulation 2.19C(7) is to provide for the currencies in which the Minister must pay the refund.

New subregulation 2.19C(8) of the Principal Regulations provides that if:

• in the opinion of the Minister, there is no doubt about the identity of the payer; and
• the Minister pays the amount of the refund to the payer or a person mentioned in paragraph 2.19C(2)(b) or 2.19C(2)(c);

a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of any liability of the Commonwealth in relation to the payment of the amount of the refund.

The purpose of new subregulation 2.19C(8) is to provide that if in the opinion of the Minister, there is no doubt about the identity of the payer and the Minister pays the amount of the refund to the payer or a person mentioned in paragraph 2.19C(2)(b) or 2.19C(2)(c), a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of any liability of the Commonwealth in relation to the payment of the amount of the refund.

Item [3] - Subregulation 5.36(4)

This item would substitute subregulation 5.36(4) of Division 5.7 of Part 5 of the Principal Regulations.

Previous subregulation 5.36(4) provided that, in regulation 5.36, 'fee' means:

• an instalment of visa application charge; or
• a fee payable under these Regulations.

New subregulation 5.36(4) provides that, in regulation 5.36, 'fee' means:

• an instalment of visa application charge; or
• an amount of visa evidence charge; or
• a fee payable under these Regulations.

The purpose of new subregulation 5.36(4) is to preserve previous subregulation 5.36(4) and also to provide that an amount of visa evidence charge is a fee for the purposes of regulation 5.36.

Item [4] - Schedule 8, clause 8403

This item would omit clause 8403 of Schedule 8 to the Principal Regulations.

Clause 8403 provided that the holder must visit an office of Immigration specified by the Minister, within the time specified by the Minister, for the purpose of having evidence of the visa placed in the holder's passport.

Clause 8403 was a condition that could be attached to a visa at the time the visa is granted.

The purpose of imposing the visa evidence charge is to reduce the volume of visa evidence that is provided to visa holders. As clause 8403 required a visa holder to have evidence of the visa placed in the holder's passport, it is not consistent with the policy of reducing the volume of visa evidence that is provided visa holders and so that clause is removed.

Item [5] - Further amendments - omissions

Item 5 of Schedule 6 to the Regulation omits a number of Divisions from Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment in Item [2] of Schedule 6 to the Regulation which substitutes a new Division 2.4 of Part 2 of the Principal Regulations.

The Divisions omitted from Schedule 2 to the Principal Regulations all provided for the evidence, if any, that may be provided for the grant of a visa of the subclass in which the Division is currently located.

Because new Division 2.4 provides for the evidence of the grant of a visa, it is no longer necessary for provisions in Schedule 2 to the Principal Regulations to specify a way of giving evidence or if no evidence need be given. For that reason, these Divisions are omitted.

 

The Divisions omitted are:

010.7	020.7	030.7	040.7	041.7
050.7	051.7	060.7	070.7	100.7
101.7	102.7	103.7	114.7	115.7
116.7	117.7	118.7	119.7	120.7
121.7	124.7	143.7	151.7	155.7
157.7	159.7	160.7	161.7	162.7
163.7	164.7	165.7	173.7	175.7
176.7	200.7	201.7	202.7	203.7
204.7	300.7	302.7	303.7	309.7
405.7	406.7	410.7	411.7	415.7
416.7	417.7	419.7	420.7	421.7
422.7	423.7	426.7	427.7	428.7
442.7	444.7	445.7	448.7	449.7
450.7	456.7	457.7	459.7	461.7
462.7	470.7	475.7	476.7	485.7
487.7	488.7	570.7	571.7	572.7
573.7	574.7	575.7	576.7	580.7
651.7	675.7	676.7	679.7	685.7
771.7	773.7	786.7	800.7	801.7
802.7	804.7	808.7	820.7	834.7
835.7	836.7	837.7	838.7	845.7
846.7	850.7	851.7	852.7	855.7
856.7	857.7	858.7	859.7	864.7
866.7	884.7	885.7	886.7	887.7
890.7	891.7	892.7	893.7	956.7
976.7	977.7	988.7	995.7

Item [6] - Further amendments - omission of condition 8403

Item 6 of Schedule 6 to the Regulation omits references to condition 8403 in a number of provisions in Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment in item [4] of Schedule 6 to the Regulation which omits clause 8403 of Schedule 8 to the Principal Regulations.

As clause 8403 is omitted from Schedule 8 to the Principal Regulations references to clause 8403 in Schedule 2 to the Principal Regulations are also omitted.  Those references are in the following provisions:

 

050.612A(3)	050.613	050.613A(2)
050.614(2)	050.615(2)	050.615A(2)
050.616(2)	050.617	051.611A(3)
051.612	060.612(b)	416.612
417.612	422.612

Schedule 6 - Amendments of Migration Regulations 1994 relating to evidentiary requirements for family violence claims

Item [1] - Subregulation 1.21(1)

This item omits '(1) In this Division:' in subregulation 1.21(1) and replaces it with 'In this Division'.  This is a technical amendment that is consequential to the removal of subregulation 1.21(2) in item [3] below.  

Item [2] - Subregulation 1.21(1), definition of competent person

This item omits the definition of 'competent person' from subregulation 1.21(1) of Division 1.5 of Part 1 of the Principal Regulations.

This amendment is consequential to the amendment in item [7] below, which omits regulation 1.26. As regulation 1.26, which is about statutory declarations by 'competent persons', is omitted, it is no longer necessary to define the term 'competent person'.

Item [3] - Subregulation 1.21(2)

This item omits subregulation 1.21(2), which sets out positions referred to in subparagraph 1.21(a)(vi) of the definition of 'competent person'.  This amendment is consequential to the amendment in item [2], which omits the definition of 'competent person'.   

Item [4] - Regulation 1.24

This item substitutes a new regulation 1.24 of Division 1.5 of Part 1 of the Principal Regulations. 

Previous regulation 1.24 provided for the evidence that an alleged victim or another person on the alleged victim's behalf had presented under paragraph 1.23(9)(c). That evidence is required before an application for a visa can be taken to include a 'non-judicially determined claim of family violence' under subregulation 1.23(9). For some visa classes, applicants may be granted a visa if they have suffered family violence.

Previous subregulation 1.24(1) provided that that evidence must be:

*                a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:

o   a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and

§  a copy of a record of an assault, allegedly committed by the alleged perpetrator, on:

*         the alleged victim; or

*         a member of the family unit of the alleged victim; or

*         a member of the family unit of the alleged perpetrator;

that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or

o   two statutory declarations under regulation 1.26 (which deals with statutory declarations by competent persons).  

New regulation 1.24 provides that the evidence mentioned in paragraph 1.23(9)(c) is a statutory declaration under regulation 1.25 and the type and number of items of evidence specified by the Minister, by instrument in writing. The type and number of documents are to be specified by the Minister in an instrument in writing. Examples of these types of documents could include medical reports, hospital reports or statutory declarations by persons specified under the instrument.

The purpose of these amendments is to provide greater access to those genuine family violence victims who are not able to obtain the prescribed evidence due to logistical, financial and other reasons. Due to the detailed requirements in regulation 1.26 for statutory declarations, the visa applicant is often required to make multiple visits to a competent person if the statutory declaration does not comply with those requirements. The visa applicants are often required to relay their story several times to strangers and the experience can exacerbate the trauma for genuine family violence victims.

The removal of the requirement for a valid statutory declaration from two competent persons increases the range and quality of evidence provided by the applicant.

The effect of these amendments is that the person now need only provide a statutory declaration under regulation 1.25 and a specified number of specified types of documents rather than a number of statutory declarations.

Items [5] and [6] - Subregulation 1.25(2) and subregulation 1.25(3)

These items omit from subregulation 1.25(2) and subregulation 1.25(3) of Division 1.5 of Part 1 of the Principal Regulations references to 'subregulation 1.21(1)' and replace them with 'regulation 1.21'.  This amendment is consequential to the renumbering of regulation 1.21 proposed in item [1] above.

Item [7] - Regulation 1.26

This item omits subregulation 1.26 of Division 1.5 of Part 1 of the Principal Regulations.

Previous regulation 1.26 provided the requirements for a statutory declaration made by a competent person.

As a statutory declaration made by a competent person is no longer be a form of evidence that may be provided under paragraph 1.23(9)(c) in support of a 'non-judicially determined claim of family violence', previous regulation 1.26 is no longer necessary and therefore should be omitted. This amendment is consequential to the amendment proposed in item [4] above, to substitute a new regulation 1.24 under which a statutory declaration under regulation 1.26 is no longer evidence of a non-judicially determined claim of family violence.     

Item [8] - Regulation 1.27

This item substitutes regulation 1.27 of Division 1.5 of Part 1 of the Principal Regulations.

Previous regulation 1.27 provided that a statutory declaration made under regulation 1.25 or 1.26, or an opinion of an independent expert in subparagraph 1.23(10)(c)(i), was not admissible in evidence before a court or tribunal otherwise than in:

• an application for judicial review or merits review of a decision to refuse to grant a visa the application for which included the non-judicially determined claim of family violence to which the statutory declaration or opinion relates; or
• a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.     

New regulation 1.27 provides that, except in the situations mentioned in the two dot points above, the following documents are not admissible in evidence before a court or tribunal:

• a statutory declaration that is a type of evidence specified by the Minister under paragraph 1.24(b);
• a statutory declaration under regulation 1.25; and
• an opinion of an independent expert in subparagraph 1.23(10)(c)(i).

The purpose of this item is to amend regulation 1.27 to omit the reference to regulation 1.26 and to include, in addition to a statutory declaration made under regulation 1.25 and the opinion of an independent expert mentioned in subparagraph 1.23(10)(c)(i), a statutory declaration that is a type of evidence specified by the Minister in an instrument under paragraph 1.24(b) is not admissible before a court or tribunal. This amendment is consequential to the amendment proposed in item [4] above.

Schedule 7 - Amendment of Migration Regulations 1994 relating to transitional arrangements

Item [1] - Schedule 13, after Part 5

This item inserts new Part 6 after Part 5 in Schedule 13 to the Principal Regulations to deal with transitional arrangements in respect of amendments to the Principal Regulations. 

The heading for new Part 6 is 'Amendments made by Migration Legislation Amendment Regulation 2012 (No. 5)'.  

The purpose of this amendment is to clarify to whom the amendments in Schedules 1 to 6 of the Regulation apply.  

In relation to Schedule 1, new subitem 601(1) provides that the amendments of the Principal Regulations made by Schedule 1 to the Regulation apply in relation to an application made on or after 24 November 2012 for a visa by a person seeking to satisfy the secondary criteria for the grant of a Subclass 422 (Medical Practitioner) visa.  

In relation to Schedule 2, new subitem 601(2) provides that the amendments of the Principal Regulations made by Schedule 2 to the Regulation apply in relation to an application for a visa made on or after 24 November 2012.

In relation to Schedule 3, new subitem 601(3) provides that the amendments of the Principal Regulations made by Schedule 3 to the Regulation apply in relation to an application for a visa made on or after 24 November 2012.

In relation to Schedule 4, new subitem 601(4) provides that the amendments of the Principal Regulations made by Schedule 4 to the Regulation apply in relation to an application for a visa made, but not finally determined, before 24 November 2012, or made on or after 24 November 2012.

The effect of this transitional provision is to allow condition 8501 or new condition 8558 to be imposed on a Subclass 676 (Tourist) visa that is granted after the commencement date, on the basis of a visa application made before, on or after the commencement date.

In relation to Schedule 5, new subitem 601(5) provides that the amendments of the Principal Regulations made by Schedule 5 to the Regulation apply in relation to a request to be given a prescribed form of evidence of a visa made on or after 24 November 2012.

The purpose of new subitem 601(5) is to make it clear that the amendments of the Principal Regulations made by Schedule 5 to the Regulation apply in relation to a request to be given a prescribed form of evidence of a visa made on or after 24 November 2012.  This means that if a person holds a visa that is in effect on or after 24 November 2012 and makes a request for evidence of that visa under section 70 of the Act, the requirements prescribed in these regulations apply to that request.  As long as the visa is in effect on this date, it does not matter whether the visa is granted before or after 24 November 2012.

In relation to Schedule 6, new subitem 601(6) provides that the amendments of the Principal Regulations made by Schedule 6 to the Regulation apply in relation to an application for a visa made, but not finally determined, before 24 November 2012 if:

 

*         on or after 24 November 2012, the alleged victim, or another person on the alleged victim's behalf, has provided a statutory declaration under regulation 1.25; and

*         the alleged victim or another person on the alleged victim's behalf has not previously provided a statutory declaration under regulation 1.25 in relation to that application.

Subitem 601(7) of new Part 6 also provides that the amendments of the Principal Regulations made by Schedule 6 to the Regulation apply in relation to an application for a visa made on or after 24 November 2012.

Schedule 8 - Amendments of Australian Citizenship Regulations 2007 relating to currency

 

Item [1] - Subregulation 12A(7), definition of conversion instrument

 

This item amends the definition of "conversion instrument" currently in subregulation 12A(7) of the Citizenship Regulations by omitting the reference to the instrument numbered IMMI 12/008, which commenced on 1 July 2012, and substituting a reference to the instrument numbered IMMI 12/076 that will commence on 1 January 2013.

 

New definition of 'conversion instrument'

 

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.

 

The new definition of 'conversion instrument' incorporates, by reference, a new instrument titled 'Payment of Visa Application Charges and Fees in Foreign Currencies', (IMMI12/008) that is made under subregulation 5.36(1A) of the Principal Regulations.  The new instrument commences on 1 January 2013 and sets out application fee amounts in foreign currencies which correspond to amounts payable in Australian dollars. 

 

Amending the definition of 'conversion instrument' allows a person to pay the fee for an application made under the Citizenship Act in a foreign currency.  Without this amendment, it is possible that clients making applications at overseas posts would suffer hardship, as there is no provision in the Principal Regulations to indicate how much application fee is payable in a currency other than the Australian dollar.

 

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 Principal Regulations as in force from time to time.  Rather, the new instrument is incorporated, by reference, at the time of commencement of the Regulation.

 

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

 

Item [2] - Subregulation 12A(7), definition of places and currencies instrument

 

This item amends the definition of 'places and currencies instrument', currently in subregulation 12A(7) of the Citizenship Regulations, by omitting the reference to the instrument numbered IMMI12/009, which commenced on 1 July 2012, and substituting a reference to the instrument numbered IMMI12/077 that commences on 1 January 2013.

 

New definition of 'places and currencies instrument'

 

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.

The new definition of 'places and currencies instrument' incorporates, by reference, a new instrument titled 'Places and Currencies for Paying of Fees' (IMMI12/077) made under subregulation 5.36(1) of the Principal Regulations.  The new instrument commences on 1 January 2013 and sets out the places and currencies for the payment of fees.

 

Amending the definition of 'places and currencies instrument' allows a person to pay the fee for an application made under the Citizenship Act in a foreign country and using a foreign currency.  Without this amendment, clients making applications at overseas posts may suffer hardship, since they would not be able to pay application fees in the country they are in, or in a currency other than the Australian dollar.

 

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 Principal Regulations as in force from time to time.  Rather, the new instrument is incorporated, by reference, at the time of commencement of the Regulation.

 

The Instrument made under the Principal Regulations is incorporated in the Citizenship Regulations to achieve the objective set out at item [1], with regard to the definition of 'Places and Currencies for Paying of Fees'. 

 

Item [3] - Transitional arrangements

 

This item provides that the amendments made by Schedule 1 apply in relation to an application made under Division 2, 3 or 4 of Part 2 of the Australian Citizenship Act 2007 (the Citizenship Act) on or after 1 January 2013.

 

Schedule 9 - Amendment of Australian Citizenship Regulations 2007 relating to Defence families

Item [1] - After regulation 6

 

This item inserts a new regulation 6A in Part 2 of the Citizenship Regulations.

 

New regulation 6A prescribes the following visas for the purposes of paragraphs 23(2)(a) and 23(3)(a) of the Citizenship Act:

 

• Employer Nomination (Permanent) (Class EN);
• Labour Agreement (Migrant) (Class AU);
• Labour Agreement (Residence) (Class BV);
• Regional Employer Nomination (Permanent) (Class RN).

 

Section 23 of the Citizenship Act provides for the defence service requirement.  The defence service requirement was introduced into the Citizenship Act by the Australian Citizenship (Defence Families) Act 2012 (the Defence Families Act) and is one means by which an applicant for Australian citizenship may satisfy the criterion in paragraph 21(2)(c) of the Citizenship Act.  Subsection 21(2) of the Citizenship Act, more generally, provides for how a person may become eligible to become an Australian citizen.

 

This new regulation is consequential to the amendments to the Citizenship Act by the Defence Families Act.

Section 23 of the Citizenship Act provides for how a person satisfies the defence service requirement. 

 

Subsection 23(1) provides that a person satisfies the defence service requirement if the person has completed relevant defence service, which is defined in subsection 23(4) of the Citizenship Act.

 

Subsection 23(2) provides that, if:

 

• a person ('the defence person') was granted, on or after 1 July 2007, a visa prescribed under the regulations; and

• the defence person has completed relevant defence service; and
• another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and
• the relative holds a visa of that kind because the relative is a member of the family unit of the defence person;

 

the relative satisfied the defence service requirement.

 

Subsection 23(3) provides that, if

 

• a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed by the regulations; and
• the defence person dies while undertaking service in the Permanent Forces or the Reserves; and
• another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and
• immediately before the death of the defence person, the relative held a visa of that kind because the relative was a member of the family unit of the defence person;

 

the relative satisfied the defence service requirement.

 

The amendments made by the Defence Families Act enable certain family members of a defence person to satisfy the relevant defence service residence requirement and be eligible for conferral of Australian citizenship at the same time as the defence person or as a result of the death of that defence person. 

 

Regulation 6A in Schedule 9 to this Regulation prescribes visas under paragraphs 23(2)(a) and 23(3)(a) in the Citizenship Regulations.

 

The purpose of this amendment is to prescribe the type of visa required to be granted on or after 1 July 2007 to a person who has completed relevant defence service, or has died while undertaking service in the Permanent Forces or Reserves, in order for certain members of their family unit to satisfy the defence service requirement for the purposes of section 21 of the Citizenship Act.