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MIGRATION LEGISLATION AMENDMENT REGULATION 2013 (NO. 2) (SLI NO 96 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 96

Subject -          Migration Act 1958

                        Migration Legislation Amendment Regulation 2013 (No. 2)

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions of the Act in Attachment A.

The purpose of the Regulation is to:

*         amend the Principal Regulations to specify where an application for a Domestic Worker (Executive) stream in the Subclass 401 (Temporary Work (Long Stay Activity)) visa must be made.  Previously, applicants who were outside Australia were required to lodge an application outside Australia.  However, it is intended that applications for the Domestic Worker (Executive) stream are processed at an office of Immigration in Australia.  The purpose of the amendments is to provide that an applicant must make an application at an address (in Australia) specified by the Minister in an instrument in writing. If there is no instrument in force the applicant may make an application at an office of Immigration in Australia;

*         amend the Migration Regulations 1994 (the Principal Regulations), the Migration Legislation Amendment Regulation 2013 (No.1), and the Migration Agents Regulations 1998 to correct inadvertent errors and omissions made in the Migration Legislation Amendment Regulation 2013 (No.1). These corrections:

o   ensure that an application made in Australia for a Skilled Provisional (Class VC) visa using form 1409 is also an application for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa. This is to retain the intention that an applicant for a substantive visa is more easily able to apply for a bridging visa that, if granted, will allow the applicant to remain lawfully in Australia and not liable to be detained while their visa application is being decided;

o   ensure that amendments made by Migration Legislation Amendment Regulation 2013 (No.1) to provisions in the Principal Regulations about seeking merits review apply to all of the applicants to whom they were intended to apply; and

o   repeal provisions that were made redundant but not omitted by the Migration Legislation Amendment Regulation 2013 (No.1).

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the Regulation is compatible with human rights because it advances the protection of human rights.  A copy of the Statement is at Attachment B.

Details of the Regulation are set out in Attachment C.

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

The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the Regulation.  The OBPR considers that the changes have a 'minor' impact on business or the not-for profit sector and no further analysis is required.  The OBPR consultation references are:

*         2011/12604 (items 1, 5 and 6, Schedule 1)

*         2012/14205 (items 2-4 and 7, Schedule 1)

*         2012/14082 (items 1 and 2, Schedule 2)

*         2013/14506 (items 3 - 6, Schedule 2)

The amendments made in Schedule 1 and items 1 and 2 of Schedule 2 are of a technical nature and are intended to correct unintended consequences arising from the Migration Legislation Amendment Regulation 2013 (No.1). As appropriate consultation was undertaken by the Department in relation to the substantive measures in the Migration Legislation Amendment Regulation 2013 (No.1), no further consultations were necessary for the purpose of this amendment. 

Items 1, 5 and 6 of Schedule 1 are consequential to the amendments relating to Tribunals' procedures in the Migration Legislation Amendment Regulation 2013 (No. 1) in March 2013. As part of this process, the Department consulted with the Tribunals which support these amendments. The Department also consulted with the Administrative Law Unit of the Attorney-General's Department about whether or not  these changes would be likely to impinge upon procedural fairness and/or would be inconsistent with the principles outlined in the 'Australian Administrative Law Policy Guide'.  The Administrative Law Unit of the Attorney-General's Department did not assess the amendments as likely to have any adverse impact on procedural fairness.    

Items 2-4 and 7 of Schedule1 are consequential to the amendments relating to the post study work arrangements introduced by the Migration Legislation Amendment Regulation 2013 (No.1) in March 2013.  As part of this process, the Department consulted with key stakeholders from various government agencies and representatives from the education sector.

Items 1 and 2 of Schedule 2 remove redundant provisions as a consequence of the amendments relating to the Migration Agents Continuing Professional Development (CPD) requirements introduced by the Migration Legislation Amendment Regulation 2013 (No.1) in March 2013. When introducing these amendments, the Department consulted with the Office of the Migration Agents Registration Authority (Office of the MARA), the Migration Institute of Australia, Migration Alliance, approved CPD providers and the Migration Agents Registration Advisory Committee (MAREAC).

In relation to the amendments made in items 3-6 of Schedule 2 to the Regulation, the consultation process involved the publication of two discussion papers: "Simpler Visas: Creating a Simpler Framework for Temporary and Permanent Entry to Australia" in 2010 and "Simpler Visas: Making Visitor Visas Simple" in 2011. Submissions were received from a wide range of stakeholders, including Commonwealth agencies, State and Territory governments, employer bodies, tourism bodies, unions and other charity organisations. .. The amendment to the Domestic Worker (Executive) Stream is a minor amendment that falls within this broader suite of changes. 

In relation to the amendments made in items 3-6 of Schedule 2 to the Regulation, the Department of Immigration and Citizenship )'the Department') has consulted with ... ..

Sections 1 to 4 and Schedule 1 to the Regulation commence on 1 June 2013. Schedule 2 to the Regulation commences on 1 July 2013.

Section 1 sets out the name of the Regulation. Section 2 sets out the commencement dates for the sections and schedules to the Regulation. Section 3 sets out the authority for making the Regulation. Section 4 sets out the effect of the Regulation on each instrument or item in the Schedule to the Regulation.

Schedule 1 of the Regulation contains changes relating to:

*         the procedures of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT);

*         the application of the Migration Legislation Amendment Regulation 2013 (No.1); and

*         the forms prescribed for the purposes of applying for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa.

 

Schedule 2 of the Regulation contains changes relating to:

 

*         the removal of redundant provisions in the Migration Agents Regulations 1998;

*          where an application for a Domestic Worker (Executive) stream in the Subclass 401 (Temporary Work (Long Stay Activity)) visa must be made.

 

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


ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the  Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

o   is outside Australia; or

o   is in immigration clearance; or

o   has been refused immigration clearance and has not subsequently been immigration cleared; or

o   is in the migration zone and, on last entering Australia, was immigration cleared or bypassed immigration clearance and had not subsequently been immigration cleared;

 

o   where an applicant must be when an application for a visa of a specified class is made;

 

and then the response is to be made at an interview at the new time;

and then the response is to be made at an interview at the new time; and

 

 


ATTACHMENT B

Statement of Compatibility with Human Rights

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

 

Migration Legislation Amendment Regulation 2013 (No. 2)

 

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

 

Overview of the amendments

The Department proposes amendments to substitute new subregulation 4.31(1) and subregulation 4.31(2) of the Migration Regulation 1994 (the Migration Regulation) to clarify the Department's intention that the determination of the applicable time periods for seeking review of an RRT-reviewable decision is determined by whether or not the applicant was in immigration detention on the day that they were notified of the Department's decision. 

 

Applicants in immigration detention are given a different time period to applicants who are not in immigration detention because it is recognised that it is not preferable to limit the time that applicants must spend in immigration detention. A shorter time period is given to applicants in immigration detention to enable expedition of reviews in respect of these applicants.

 

Amended subregulation 4.31(1) would relevantly provide that, for paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the RRT by or for the applicant is 7 working days, commencing on:

 

*         the day the applicant is notified of the decision; or

*         if the day is not a working day - the first working day after that day.

 

Amended subregulation 4.31(2) would provide that if an applicant is not in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

 

The amendment does not change the current time periods for seeking review, but rather seeks to clarify how such time periods would be calculated.

 

The substituted note at the end of regulation 4.31 would replicate the existing note. Currently, the note after subregulation 4.31(2) provides 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 the method. 

Section 494B of the Act provides for the methods by which the Minister gives documents to a person.  Section 494C of the Act provides for when a person is taken to have received a document from the Minister. 

 

Human rights implications

As the amendments are technical amendments and seek only to restore the original policy intention relating to the calculation of time frames for the filing of an application for review, the amendments do not engage the seven core human rights treaties or the rights articulated thereunder.

Conclusion

This legislative instrument is compatible with human rights.

 

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

 

Overview of the amendments

The Migration Regulations were amended, with effect from 23 March 2013, to insert a new stream into the Subclass 485 (Temporary Graduate) visa and made consequential amendments to the validity requirements to make a valid application for a Class VC visa. As a result of those amendments, form 1409 was specified as a form for making an application for a Class VC visa. Prior to those amendments the approved forms for a Class VC visa were also prescribed forms for the purposes of apply for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa.

A Bridging visa is a temporary visa that provides, among other things, for a non-citizen to remain lawfully in Australia while their application for a substantive visa is being processed. Applications for substantive visas made in Australia are also applications for a bridging visa. This is so the applicant may be eligible for the grant of a bridging visa while the application for a substantive visa is being decided. If the applicant does not hold another visa during the processing of their visa application, the applicant will, in the absence of a bridging visa be an unlawful non-citizen and therefore be liable to be taken into immigration detention.

The new form 1409 was not listed as an approved form for the purposes of applying for the above listed Bridging visas. As a result these amendments would include form number 1409 in the relevant Bridging visa provisions.

The amendments would make technical amendments to the Regulations to ensure that an application made in Australia for a Skilled (Provisional) (Class VC) visa, made by a person using form 1409, is also an application for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa.

Human rights implications

As the amendments are technical amendments and seek only to restore the original policy intention that an application for class VC visa is also an application Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa, the amendments do not engage the seven core human rights treaties or the rights articulated thereunder.

Conclusion

This legislative instrument is compatible with human rights.


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

 

Overview of the amendments

The amendments seek to make technical amendments to clarify the Department's intention about the transitional provisions for Schedule 4 of the Migration Legislation Amendment Regulation 2013 (No. 1).

The amendments in Schedule 4 made in March 2013 relate to the time periods that must be given to an applicant when the Migration Review Tribunal (MRT) or Refugee Review Tribunal (RRR) (collectively the Tribunals) issues:

*         a notice to appear before the Tribunal;

*          an invitation to provide comments or information; and

*         any extensions of periods of time given by the Tribunals to provide those comments or information. 

It is the policy intention for the amendments to apply to all notices and invitations from the Tribunals issued after 1 July 2013, however the current wording of the regulation does not make this clear.

Human rights implications

As the amendments are technical amendments and seek only to restore the original policy intention that the amendments in Schedule 4 of the Migration Legislation Amendment Regulation 2013 (No. 1) apply to all notices and invitation issued after 1 July 2013, the amendments do not engage the seven core human rights treaties or the rights articulated thereunder.

Conclusion

This legislative instrument is compatible with human rights.

Overview of the amendments

Schedule 1 of the Migration Agents Regulations 1998 (the Regulations) specifies the Continuing Professional Development (CPD) requirements that registered migration agents must undertake to be eligible for repeat registration as a migration agent.

 

The Department of Immigration and Citizenship and the Office of the Migration Agents Registration Authority (the MARA) are seeking to amend Schedule 1 of the Regulations to remove Clause 3A, Clause 4 and Clause 5 of Schedule 1.

 

Subclause 3A(1) provides for the factors that the MARA may take into account when deciding whether or not to specify an activity as a Continuing Professional Development activity.  Subclause 3A(2) provides for which persons are connected with an activity.  Clause 4 provides that withdrawal of approval of an activity does not affect its approval for a registered migration agent who started the activity before the withdrawal.  While 5 provides that an activity may be approved if it meets the requirements for registration to practice in another profession, including:

*         mandatory continuing legal education for legal practitioners; or

*         continuing professional education for accountants.

 

These provisions are redundant because they have been replicated in subregulation 9G(1), 9E(5) and 9G(1)(b) introduced as a result of the changes made by Schedule 5 to the Migration Legislation Regulation 2013 (No. 1) to provide greater clarity of the CPD requirements for registered migration agents as well as a basis to increase the knowledge and quality across the industry.

 

Human rights implications

As the amendments are technical amendments and seek only to remove duplicated provisions in the Regulations, applicable rights or freedoms enunciated under the seven core internal human rights treaties are not engaged.

Conclusion

This legislative instrument is compatible with human rights.

Overview of Regulation Amendment

It is proposed to amend the Migration Regulations 1994 (the Migration Regulations) so that applicants for the Domestic Worker (Executive) stream in the Subclass 401 (Temporary Work (Long Stay Activity)) visa, who are outside Australia  must post, or deliver by courier or by hand, their application to an Immigration office in Australia unless the Minister otherwise provides by written instrument.

A further amendment to the Regulations will require applicants who apply in the Domestic Worker (Executive) stream and who are outside Australia at the time of application to also be outside Australia when the visa is granted.

Under the current regulations, if an applicant is outside Australia at the time of application, the application must be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia. Additionally, if an applicant is outside Australia at the time of application, they are required to be outside Australia at time of grant.

The amendments are to:

*         Change the Schedule 1 (Item 1232) requirement for making an application for a Temporary Work (Long Stay Activity) (Subclass 401) visa in the domestic worker (executive) stream to ensure applicants must post, or deliver by courier or by hand, their application to an Immigration office in Australia unless the Minister otherwise provides by written instrument; and

*         Change the Schedule 2 Regulations to ensure that for an applicant who applies in the Domestic Worker (Executive) stream and who is outside Australia at the time of application, the applicant must also be outside Australia when the visa is granted.

These amendments do not change existing policy settings and are required to rectify an oversight that was inconsistent with the visa processing location, in Australia.

This visa exists to allow the entry of domestic workers for certain senior executives a concession recognising the representational and entertainment responsibilities of such eligible holders while working in Australia.

It is considered that for efficiency and effective caseload management requirements, this very small, sensitive and at times high profile caseload (only 12 grants in 2011-12) is better suited to onshore processing by a single DIAC office.  By requiring applicants to be outside Australia at the time of application and outside Australia when the visa is granted, it ensures that applicants do not enter Australia to commence work on an inappropriate visa.

Human rights implications

This legislative amendment has been considered against each of the seven core international human rights treaties, and does not engage any of the applicable rights or freedoms articulated therein.

Conclusion

This legislative amendment to Item 1232 of Schedule 1 and Schedule 2 Regulations are compatible with human rights and do not raise human rights issues or concerns.

 

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

 

ATTACHMENT C

 

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

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Migration Legislation Amendment Regulation 2013 (No. 2).

Section 2 - Commencement

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

This section provides for sections 1 to 4 and anything in this Regulation not elsewhere covered by the table to commence on 1 June 2013. This section also provides for Schedule 1 to the Regulation to commence on 1 June 2013 and for Schedule 2 to the Regulation to commence on 1 July 2013.

Section 3 - Authority

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

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

Section 4 - Schedule(s)

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

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

Schedule 1 - Amendments commencing on 1 June 2013

Migration Legislation Amendment Regulation 2013 (No. 1)

Item 1 - Item 9 of Schedule 4 (new subregulations 4.31(1) and (2) of the Migration Regulations 1994)

This item repeals and substitutes subregulations 4.31(1) and (2) and the note after those subregulations in item 9 of Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1)

Previously, subregulation 4.31(1) and subregulation 4.31(2) provided for the time period for seeking review at the Refugee Review Tribunal (RRT).

Previously, subregulation 4.31(2) relevantly provided that the time period for seeking review at the RRT commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:

Previously, the note after subregulation 4.31(2) provided 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 the method. 

On 1 July 2013, Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1) will commence. That Schedule will relevantly amend subregulation 4.31(1) and subregulation 4.31(2).

The subregulation 4.31(1)  made by the regulation relevantly provided that, the period in which an application for review of an RRT-reviewable decision must be given to the RRT by or for an applicant who is in immigration detention on that day:

The subregulation 4.31(2) made by that regulation relevantly provided that the period in which an application for review of an RRT-reviewable decision must be given to the RRT by or for an applicant who is not in immigration detention on that day:

The new note at the end of regulation 4.31 replicates the previous note after previous subregulation 4.31(2).

The regulation 4.31 made by that regulation substantially replicated the effect of previous subregulation 4.31(1) and previous subregulation 4.31(2) and continued to provide for the timeframes within which an application for review to the RRT must be given to the RRT. 

Under the amendments made by the Migration Legislation Amendment Regulation 2013 (No. 1), the applicable time periods depend on whether or not the applicant is in immigration detention on the day they make their application for review. Previously, those time periods turned on whether or not the applicant is in immigration detention on the day that he or she is notified of the RRT-reviewable decision. The amendments made by the Migration Legislation Amendment Regulation 2013 (No. 1) were not intended to alter that and, to the extent that they did, this was an error. The amendments in this regulation restore that element while retaining the rest of the amendments made by the Migration Legislation Amendment Regulation 2013 (No. 1).  The amendments commence on 1 July 2013 in place of the original amendments.

The substituted subregulation 4.31(1) and subregulation 4.31(2) retain the amended time periods for seeking review of an RRT-reviewable decision.

Substituted subregulation 4.31(1) provides that, for paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the RRT by or for the applicant is 7 working days, commencing on:

Substituted subregulation 4.31(2) provides that, for paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

The substituted note at the end of regulation 4.31 replicates the existing note.

Migration Regulations 1994

 Items 2, 3 and 4 - Subitem 1301(1), subitem 1303(1) and subitem 1305(1) of Schedule 1

This amendment inserts form number '1409', into subitem 1301(1), subitem 1303(1) and subitem 1305(1) of Schedule 1 to the Migration Regulations 1994 ('the Principal Regulations').

Subitem 1301(1), subitem 1303(1) and subitem 1305(1) list the forms that are prescribed forms for the purposes of applying for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa, respectively. Previously, those subitems included one of the forms that a person may use to apply for a Skilled Provisional (Class VC) visa (form number 1276 (Internet)) but not the other form that a person may use to apply for a Class VC visa (form 1409).

Amended subitem 1301(1), subitem 1303(1) and subitem 1305(1) provide that form 1409 is a prescribed form for the purposes of applying for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa. Therefore, an application for a Skilled (Provisional) (Class VC) visa, made by a person in Australia using form 1409, will also be an application for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa.

Applications for substantive visas made in Australia are also applications for a bridging visa. This is so the applicant may be eligible for the grant of a bridging visa while the application for a substantive visa is being decided. If the applicant does not hold another visa during the processing of their visa application, the applicant will, in the absence of a bridging visa, be an unlawful non-citizen and therefore be liable to be taken into immigration detention.

Schedule 2 to the Migration Legislation Amendment Regulation 2013 (No. 1) inserted, with effect from 23 March 2013, a new stream into the Subclass 485 visa and made consequential amendments to Item 1229 (Skilled Provisional) (Class VC) visa in Schedule 1 to the Principal Regulations. New item 1229 provides that the forms upon which applicants must apply for a Class VC visa are those specified by the Minister in an instrument in writing for that subitem.

Form numbers 1276 (internet) and 1409 were specified by the Minister in an instrument in writing (Federal Register of Legislative Instruments reference number: F2013L00533) which came into effect on 23 March 2013, as approved forms for a Class VC visa. It was intended that an application for a Class VC visa, using form 1409, would continue to also be an application for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa

The purpose of the amendment is to ensure that an application for a Class VC visa, made using form 1409, is also an application for a Bridging A (Class WA) visa, Bridging C (Class WC) visa and Bridging E (Class WE) visa.

Items 5 and 6 - Subitem 1304(2) and Subitem 1304(3) of Schedule 13

This item repeals and substitutes subclause 1304(2), and repeals subclause 1304(3), of Schedule 13 to the Principal Regulations.

Item 1304 provides for how the amendments made by Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1) will apply. Item 1304 commenced on 23 March 2013 while the amendments made by Schedule 4 will commence on 1 July 2013.

Previously, subitem 1304(2) provided that, if an application to the Migration Review Tribunal ('MRT') or the RRT (collectively referred to as 'the Tribunals') was made before 1 July 2013 and, on or after 1 July 2013, the MRT or the RRT issued a notice to appear, or an invitation to provide comments or information, in relation to the application, the amendments of the Principal Regulations made by Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1) apply in relation to the issue of the notice or invitation. 

Previously, subitem 1304(3) provided that, if an application to the MRT or the RRT was made before 1 July 2013 and, on or after 1 July 2013, the MRT or the RRT extends a period of time in relation to the application, the amendments of the Principal Regulations made by Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1) also apply in relation to the extension of time. 

Substituted subitem 1304(2) provides that the amendments of the Principal Regulations made by Schedule 4 to the Migration Legislation Amendment Regulation 2013 (No. 1) also apply in relation to:

Previous subitem 1304(3) is repealed because the effect of this clause is replicated in  substituted subitem 1304(2).

Subitem 1304(2) and subitem 1304(3) only apply to cases where an application to the MRT or the RRT was made before 1 July 2013 and where the Tribunal issued a notice or an invitation or extended a period of time after 1 July 2013.

Subitem 1304(2) and subitem 1304(3) erroneously did not include cases where the decision to which the application relates was made before 1 July 2013, but the application to the Tribunals for review of that decision is not made until on or after 1 July 2013. For example, if the decision was made on 1 June 2013, and an application was made to the Tribunals on 1 August 2013, the amendments made by Schedule 4 to the Migration Legislation Amendment Regulation 2013 ( No. 1) do not apply to a notice to appear, an invitation to provide comments or information, or an extension of the period of time for providing comments or information, that are issued by the Tribunals on or after 1 July 2013. 

It was intended that item 1304 should apply to those cases and the substitution of subitem 1304(2) and omission of subitem 1304(3) rectifies that error.

The purpose of the amendments it to ensure that the transitional provision in item 1304 properly apply to all the cases that it was intended to apply to.

Item 7 - At the end of Schedule 13

This item inserts a new Part 15 into Schedule 13 to the Principal Regulations to deal with transitional arrangements in respect of amendments made by this Regulation.

The heading of new Part 13 is 'Amendments made by Migration Legislation Amendment Regulation 2013 (No. 2).'

Clause 1501 - Operation of Schedule 2

This item inserts a new Clause 1501 into Part 15 of Schedule 13 to the Principal Regulations. 

Clause 1501 provides that the amendments of the Principal Regulations made by item 2, item 3 and item 4 of Schedule 1 to the Migration Legislation Amendment Regulation 2013 (No. 2) apply in relation to an application for a visa made on or after the day this Part commences.

The purpose of this item is to provide for the application of the amendments made by item 2, 3 and 4 of this schedule. Those amendments apply to visa applications made on or after 1 June 2013.

Schedule 2 - Amendments commencing 1 July 2013

Migration Agents Regulations 1998

Item 1 - Clauses 3A, 4 and 5 of Schedule 1

This item  repeals clauses 3A, 4 and 5 of Schedule 1 of the Migration Agents Regulations 1998 (the Migration Agents Regulations).

Subclause 3A(1) provided for the factors that the Authority may take into account when deciding whether or not to specify an activity as a Continuing Professional Development activity.  Subclause 3A(2) provided for which persons are connected with an activity.

Previously, clause 4 provided that withdrawal of approval of an activity does not affect its approval for a registered migration agent who started the activity before the withdrawal.

Previously, clause 5 provided that an activity may be approved if it meets the requirements for registration to practice in another profession, including:

Previous clause 3A is omitted as this requirement has been replicated in subregulation 9G(1) and so clause 3A is redundant.

Previous clause 4 is omitted as this requirement has been substantially replicated in subregulation 9E(5) and so clause 4 is redundant.

Current clause 5 is omitted as this requirement has been substantially replicated in paragraph 9G(1)(b) and so clause 5 is redundant.

Item 2 - After Division 2 of Part 5

This item inserts a new regulation 14 in a new Division 3 in Part 5

Regulation 14 provides that the amendments of these Regulations made by Schedule 2 to the Migration Legislation Amendment Regulation 2013 (No. 2) apply in relation to an application for repeat registration made on or after 1 July 2013.

The purpose of this amendment is to make it clear to whom the amendments to the Migration Agents Regulations made by Schedule 2 to the Regulation apply.

Migration Regulations 1994

Item 3 - After paragraph 1232(3)(a) of Schedule 1

This item inserts a new paragraph 1232(3)(aa) into Item 1232 of Schedule 1 to the Principal Regulations.

New paragraph 1232(3)(aa) sets out where an application must be made for a Temporary Work (Long Stay Activity) (Class GB) visa in the Domestic Worker (Executive) stream.

New paragraph 1232(3)(aa) provides that, if an applicant is outside Australia, and seeks to satisfy the criteria for a Subclass 401 (Temporary Work (Long Stay Activity)) visa in the Domestic Worker (Executive) stream, an application must be made by posting, couriering or faxing the application to an address or fax number specified by the Minister in an instrument in writing. If no such instruments are in force, new paragraph 1232(3)(aa) provides that the application must be made at an office of Immigration in Australia.

The intention of this amendment is to require applicants for a Subclass 401 (Temporary Work (Long Stay Activity)) visa in the Domestic Worker (Executive) stream to make applications at an office of Immigration in Australia unless the Minister specifies otherwise by written instrument.

Item 4 - Paragraph 1232(3)(b) of Schedule 1

This item inserts the words "and paragraph (aa) does not apply," into paragraph 1232(3)(b) of Item 1232 of Schedule 1 to the Principal Regulations.

The amendment is consequential to the amendments in item 3 of this Schedule which inserts new paragraph 1232(3)(aa).

Item 5 - Division 401.4 of Schedule 2

This item repeals and substitutes Division 401.4 of Part 401 of Schedule 2 to the Principal Regulations.

Currently, clause 401.411 of Schedule 2 to the Principal Regulations requires that if the application is made in Australia, the applicant must be in Australia (but not in immigration clearance) when the visa is granted. Clause 401.412 provides that if the application is made outside Australia, the applicant must be outside Australia when the visa is granted. These requirements currently apply to visas granted in the Exchange, Sport, Religious Worker and Domestic Worker streams.

New clause 401.411 provides that if the applicant was in Australia at the time of application, the applicant must be in Australia when the visa is granted but must not be in immigration clearance.

New clause 401.412 provides that if the applicant was outside Australia at the time of application, the applicant must be outside Australia when the visa is granted.

These amendments support the intended operation of the amendment in item 1 of this Schedule which inserts new paragraph 1232(3)(aa) in respect of applicants in the Domestic Worker (Executive) stream and which requires all applications for that stream to be made in Australia. Applicants outside Australia when the application is made must be outside Australia when the visa is granted. Applicants who are in Australia at the time the application is made are required to be in Australia at the time the visa is granted, as intended under the current Division 401.4.

These amendments also apply to applicants for a Subclass 401 (Temporary Work (Long Stay Activity)) visa in the Exchange, Sport and Religious Worker streams. This does not affect the current operation of Division 401.4 as applicants in these streams are already required by Item 1232 of Schedule 1 of the Principal Regulations to apply where they are located (in or outside Australia) and to be in the same location when the visa is granted. The amendments more accurately reflect the intention that applicants who are in or outside Australia at the time they applied must also be in or outside Australia, as relevant, at the time the visa is granted.

Item 6 - At the end of Part 15 of Schedule 13

This item adds a new subitem 1501(2) in new Part 15 of Schedule 13 to the Principal Regulations.

Schedule 13 sets out the transitional arrangements which apply to amendments to the Principal Regulations.

New Part 15 inserted by item 7 of Schedule 1 to this Regulation sets out the transitional arrangements which apply to the Principal Regulations made by this Regulation.

New subitem 1501(2) provides that the amendments made by Schedule 2 to this Regulation apply in relation to an application for a visa made on or after 1 July 2013.


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