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MIGRATION AMENDMENT REGULATIONS 2005 (NO. 9) (SLI NO 240 OF 2005) - SCHEDULE 2

Amendments relating to Skilled Migration visas

(regulation 3)

Part 1                      Amendments applying to applications made on or after 1 November 2005

Division 1       General amendments

1            Regulation 2.11, heading

substitute

2.11        Special provisions for certain visa applications that are refused

2            Subregulations 2.11 (1) and (2)

substitute

         (1)   If:

                (a)    any of the following applications for a visa (a first application ) has been made:

                          (i)    an application for a visa by a non-citizen made outside Australia ;

                         (ii)    an application for any of the following visas made by a non-citizen in Australia :

                                   (A)     a Skilled — Independent Overseas Student (Residence) (Class DD) visa;

                                   (B)     a Skilled — Australian-sponsored Overseas Student (Residence) ( Class DE ) visa;

                                   (C)     a Skilled — Independent Regional (Provisional) (Class UX) visa;

                                   (D)     a Skilled — Independent (Migrant) (Class BN) visa;

                                    (E)     a Skill Matching (Migrant) (Class BR) visa;

                                    (F)     a Skilled — Australian-sponsored (Migrant) (Class BQ) visa;

                                   (G)     a Skilled — New Zealand Citizen (Residence) (Class DB) visa; and

               (b)    the first application has been refused; and

                (c)    it appears to the Minister, on the basis of the information available to the Minister, that, if the non-citizen had applied for a visa of a different class, the visa would be likely to have been granted;

the Minister may invite the non-citizen to make an application (a further application ) for a visa of the different class.

         (2)   An invitation made under subregulation (1) is to be an invitation:

                (a)    if subparagraph (a) (i) applies, and the first application was for a permanent visa — to make an application for a permanent visa; or

               (b)    if subparagraph (a) (i) applies, and the first application was for a temporary visa — to make an application for a temporary visa; or

                (c)    if subparagraph (a) (ii) applies — to make an application for a visa of a class mentioned in that subparagraph.

      (2A)   However:

                (a)    if the first application was for a Prospective Marriage (Temporary) (Class TO) visa, the Minister may invite the applicant to make a further application for both a Spouse (Provisional) (Class UF) visa and a Spouse (Migrant) ( Class BC ) visa; and

               (b)    if the first application was for both a Spouse (Provisional) (Class UF) visa and a Spouse (Migrant) ( Class BC ) visa, the Minister may invite the applicant to make a further application for a Prospective Marriage (Temporary) (Class TO) visa; and

                (c)    if the first application was for a Return (Residence) (Class BB) visa, the Minister may invite the applicant to make a further application for a Resident Return (Temporary) (Class TP) visa.

3            Subregulation 2.12 (1)

omit

(which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused)

4            Subregulation 2.12 (1), at the foot

insert

Note     Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.

5            After subregulation 2.12 (3)

insert

         (4)   For section 48 of the Act the following classes of visas are prescribed if, and only if, the person has received an invitation under regulation 2.11 to apply for a visa of that class:

                (a)    a Skilled — Independent Overseas Student (Residence) (Class DD) visa;

               (b)    a Skilled — Australian-sponsored Overseas Student (Residence) ( Class DE ) visa;

                (c)    a Skilled — Independent Regional (Provisional) (Class UX) visa;

               (d)    a Skilled — Independent (Migrant) (Class BN) visa;

                (e)    a Skill Matching (Migrant) (Class BR) visa;

                (f)    a Skilled — Australian-sponsored (Migrant) (Class BQ) visa;

                (g)    a Skilled — New Zealand Citizen (Residence) (Class DB) visa.

Note     Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.

Division 2       Amendments of Schedule 1

6            Subitem 1128AA (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

7            Subitem 1128B (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

8            Subitem 1128BA (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

9            Subitem 1128BA (5), definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

10          Subitem 1128C (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

11          Subitem 1128CA (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

12          Subitem 1128CA (5), definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

13          Subitem 1128D (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

14          Subitem 1212A (5), definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

15          Subitem 1218A (2), at the foot

insert

Note    Regulation 2.11 makes special provision for the visa application charge payable if the Minister has invited the applicant to apply for this visa.

Division 3       Amendments of Schedule 2

16          Clause 134.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

17          Clause 136.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

18          Clause 137.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

19          Clause 138.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

20          Clause 139.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

21          Clause 495.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

22          Clauses 495.227 and 495.228

substitute

495.227      The applicant is sponsored by a State or Territory government agency, the sponsorship has been accepted by the Minister, and the sponsorship is still in force.

23          Clause 495.324

omit

24          Clause 861.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

25          Clause 862.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

26          Clause 863.111, definition of completed

substitute

completed , in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

Note    The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for this clause, before the award is formally conferred.

Part 2                      Further amendments

Division 1       General amendment

27          After subregulation 2.26A (5)

insert

      (5A)   For Part 8 of Schedule 6A, if:

                (a)    an application for a visa was made, but not finally determined (within the meaning of subsection 5 (9) of the Act), before 1 November 2005 ; and

               (b)    the Minister made an assessment under subsection 93 (1) of the Act in relation to the application before 1 November 2005 ;

the prescribed number of points for the purposes of that assessment is taken to be the sum of the number of points included in the assessment and the number of points (if any) to which the applicant would have been entitled, under item 6A82 of Part 8 of Schedule 6A, if that item had been in force at the time of the assessment.

Note    Item 6A82 of Part 8 of Schedule 6A commenced on 1 November 2005 .

Division 2       Amendments of Schedule 2

28          After clause 136.232

insert

136.233      If the applicant’s qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act included (or, under subregulation 2.26A (5A), was taken to have included) the bonus points relating to a designated security mentioned in paragraph (a) of item 6A82 of Part 8 of Schedule 6A, the applicant has deposited at least AUD100 000 in a designated security for a term of not less than 12 months.

29          After clause 137.231

insert

137.232      If the applicant’s qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act included (or, under subregulation 2.26A (5A), was taken to have included) the bonus points relating to a designated security mentioned in paragraph (a) of item 6A82 of Part 8 of Schedule 6A, the applicant has deposited at least AUD100 000 in a designated security for a term of not less than 12 months.

30          Clause 495.222, including the note

substitute

495.222      (1)   If the applicant:

                   (a)     was an applicant for a Skilled — Independent (Migrant) (Class BN) visa; and

                  (b)     was invited by the Minister, under regulation 2.08DA, to apply for a Skilled — Independent Regional (Provisional) (Class UX) visa; and

                   (c)     made the application for the Skilled — Independent Regional (Provisional) (Class UX) visa not later than 6 months after the day when the applicant received the invitation;

                   the applicant’s assessed score for the Skilled — Independent (Migrant) (Class BN) visa is equal to or greater than the applicable pass mark for the Skilled — Independent Regional (Provisional) (Class UX) visa.

                   (2)   If subclause (1) does not apply, the applicant has the qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act.

Note Subdivision B of Division 3 of Part 2 of the Act provides in sections 92 to 96 for the application of a points system , under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.6 of Part 2 (see regulation 2.26A), and Schedule 6A, of these Regulations. Pool marks and pass marks are set from time to time by the Minister (Act, section 96).

31          After clause 495.234

insert

495.235      If the applicant’s qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act included (or, under subregulation 2.26A (5A), was taken to have included) the bonus points relating to a designated security mentioned in paragraph (a) of item 6A82 of Part 8 of Schedule 6A, the applicant has deposited at least AUD100 000 in a designated security for a term of not less than 12 months.

Division 3       Amendment of Schedule 6A

32          Part 8

substitute

Part 8           Bonus points qualification

 

Column 1
Item

Column 2
Qualification

Column 3
Number of points

6A81

Application for:

             Skilled — Australian-sponsored (Migrant) (Class BQ) visa

             Skilled — New Zealand Citizen (Residence) (Class DB) visa

             Skilled — Independent Overseas Student (Residence) (Class DD) visa

             Skilled — Australian-sponsored Overseas Student (Residence) ( Class DE ) visa

The applicant:

5

 

(a)    has deposited at least AUD100 000 in a designated security for a term of not less than 12 months; or

 

 

(b)    has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work; or

 

 

(c)    is the holder of a qualification (that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language; or

 

 

(d)    is accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters

 

6A82

Application for:

             Skilled — Independent (Migrant) (Class BN) visa

             Skilled — Independent Regional (Provisional) (Class UX) visa

The applicant:

5

 

(a)    has indicated in the application that the applicant is able and willing to deposit at least AUD100 000 in a designated security for a term of not less than 12 months; or

 

 

(b)    has been employed in Australia in a skilled occupation for a period of, or for periods totalling, at least 6 months in the 48 months immediately before the day on which the application was made while holding a substantive visa authorising him or her to work; or

 

 

(c)    is the holder of a qualification (that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language; or

 

 

(d)    is accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters

 



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