Commonwealth Numbered Regulations

1996 No. 211 MIGRATION REGULATIONS (AMENDMENT) - SCHEDULE 1

                          SCHEDULE 1                 Regulation 144

MODIFICATIONS OF SCHEDULE 2 TO THE MIGRATION REGULATIONS (AS IN FORCE
ON 30 SEPTEMBER 1996) IN RELATION TO APPLICATIONS TO WHICH
REGULATION 144 APPLIES 1. Part 100 (Spouse) 1.1 Clause 100.221: Omit the
clause. 1.2 Clause 100.222: Omit the clause, substitute:

"100.222 (1) The sponsorship of the applicant:

   (a)  is by the same sponsor as at the time of application; and

   (b)  is by a person who is:

        (i)    an Australian citizen; or

        (ii)   an Australian permanent resident who meets the requirements of
               subclause (2); and

   (c)  has been approved by the Minister and is still in force.

"(2) An Australian permanent resident meets the requirements of this subclause
if he or she:

   (a)  holds a permanent visa granted on the basis of an application made
        before 3 July 1996; and

   (b)  before that permanent visa was granted, was in a spouse relationship
        with the applicant of which Immigration was informed before that
        permanent visa was granted; and

   (c)  is not, and has not been, the holder of a permanent humanitarian
        visa.". 1.3 Clause 100.224: Omit the clause, substitute:

"100.224 (1) In the case of an applicant who meets the requirements of
subclause 100.211 (2):

   (a)  the applicant continues to be the spouse of the person who was the
        applicant's spouse at the time of the application; and

   (b)  that person is:

        (i)    an Australian citizen; or

        (ii)   an Australian permanent resident who meets the requirements of
               subclause 100.222 (2).

"(2) In the case of an applicant who meets the requirements of subclause
100.211 (3):

   (a)  the applicant is the spouse of the person who was the applicant's
        intended spouse at the time of the application; and

   (b)  that person is an Australian citizen.". 2. Part 101 (Child) 2.1 Clause
        101.222: Omit the clause, substitute:

"101.222 (1) The applicant meets, or continues to meet, the requirements of
subclause (2), (3), (4) or (5).

"(2) The applicant meets the requirements of this subclause if the sponsorship
of the applicant:

   (a)  is the sponsorship referred to in clause 101.212; and

   (b)  is by an Australian citizen; and

   (c)  has been approved by the Minister and is still in force.

"(3) The applicant meets the requirements of this subclause if:

   (a)  the applicant was born outside Australia and is under 18 years of age;
        and

   (b)  the applicant is a dependent child of the person referred to in
        subclause 101.211 (1) as an Australian permanent resident or an
        eligible New Zealand citizen (in this subclause called 'the parent');
        and

   (c)  either:

        (i)    the parent:

                (A)  is an Australian permanent resident (other than an
                     Australian permanent resident who is, or has been, the
                     holder of a permanent humanitarian visa); and

                (B)  at the time the applicant was born, was the holder of a
                     permanent visa; or

        (ii)   the parent is an eligible New Zealand citizen; and

   (d)  the applicant is sponsored by a person who has turned 18, being either
        the parent or a person who is:

        (i)    the cohabiting spouse of the parent; and

        (ii)   an Australian permanent resident (other than an Australian
               permanent resident who is, or has been, the holder of a
               permanent humanitarian visa) or an eligible New Zealand
               citizen; and

   (e)  the sponsorship of the applicant has been approved by the Minister and
        is still in force.

"(4) The applicant meets the requirements of this subclause if:

   (a)  the applicant is a dependent child of the person referred to in
        subclause 101.211 (1) as an Australian permanent resident (in this
        subclause called 'the parent'); and

   (b)  the parent is an Australian permanent resident (other than an
        Australian permanent resident who is, or has been, the holder of a
        permanent humanitarian visa); and

   (c)  the applicant was included in the application of the parent that
        resulted in the grant of a permanent visa to the parent; and

   (d)  the applicant is sponsored by a person who has turned 18, being either
        the parent or a person who is:

        (i)    the cohabiting spouse of the parent; and

        (ii)   an Australian permanent resident (other than an Australian
               permanent resident who is, or has been, the holder of a
               permanent humanitarian visa) or an
               eligible New Zealand citizen; and

   (e)  the sponsorship of the applicant has been approved by the Minister and
        is still in force.

"(5) The applicant meets the requirements of this subclause if:

   (a)  the applicant has not turned 18 and is a dependent child of the person
        referred to in subclause 101.211 (1) as an Australian permanent
        resident or an eligible New Zealand citizen (in this subclause called
        'the relevant parent'); and

   (b)  the relevant parent is:

        (i)    an Australian permanent resident (other than an Australian
               permanent resident who is, or has been, the holder of a
               permanent humanitarian visa); or

        (ii)   an eligible New Zealand citizen; and

   (c)  either:

        (i)    the relevant parent is granted custody of the applicant
               (whether by an order of the Family Court of Australia or under
               the laws of another country); or

        (ii)   both:

                (A)  a parent of the applicant who is not the relevant parent
                     dies or becomes incapable of caring for the applicant;
                     and

                (B)  the Minister is satisfied that it is appropriate in the
                     circumstances for the visa to be granted; and

   (d)  the applicant is sponsored by a person who has turned 18, being either
        the relevant parent or a person who is:

        (i)    the cohabiting spouse of the relevant parent; and

        (ii)   an Australian permanent resident (other than an Australian
               permanent resident who is, or has been, the holder of a
               permanent humanitarian visa) or an eligible New Zealand
               citizen; and

   (e)  the sponsorship of the applicant has been approved by the Minister and
        is still in force.".

3. Part 102 (Adoption) 3.1 Clause 102.221: Omit the clause, substitute:

"102.221 The applicant continues to satisfy the criteria in clause 102.213 and
meets the requirements of subclause (2), (3) or (4).

"(2) The applicant meets the requirements of this subclause if:

   (a)  the applicant has not turned 18; and

   (b)  the applicant was adopted overseas by a person who:

        (i)    either:

                (A)  was, at the time of the adoption, an Australian citizen;
                     or;

                (B)  if the time of adoption was before 3 July 1996, was, at
                     the time of adoption, an Australian citizen, an
                     Australian permanent resident or an
                     eligible New Zealand citizen; and

        (ii)   had been residing overseas for more than 12 months at the time
               of the application; and

   (c)  the Minister is satisfied that the residence overseas by the adoptive
        parent was not contrived to circumvent the requirements for entry to
        Australia of children for adoption; and

   (d)  the adoptive parent has lawfully acquired full and permanent parental
        rights by the adoption; and

   (e)  the relevant authorities of the overseas country have approved the
        departure of the applicant to Australia.

"(3) An applicant meets the requirements of this subclause if:

   (a)  the applicant has not turned 18; and

   (b)  the applicant is resident in an overseas country; and

   (c)  either:

        (i)    an unmarried person who is an Australian citizen has undertaken
               in writing to adopt the applicant; or

        (ii)   spouses, at least one of whom is an Australian citizen, have
               undertaken in writing to adopt the applicant; and

   (d)  the child welfare authorities of an Australian State or Territory have
        approved the prospective adoptive parent or parents as a suitable
        adoptive parent, or suitable adoptive parents, for the applicant; and

   (e)  the relevant authorities of the overseas country have approved the
        departure of the applicant:

        (i)    for adoption in Australia; or

        (ii)   in the custody of the prospective adoptive parent or parents;
               as the case requires.

"(4) The applicant meets the requirements of this subclause if:

   (a)  the applicant has not turned 18; and

   (b)  the applicant is resident in an overseas country; and

   (c)  either:

        (i)    an unmarried person who is an Australian permanent resident or
               an eligible New Zealand citizen has undertaken in writing to
               adopt the applicant; or

        (ii)   spouses, at least one of whom is an Australian permanent
               resident or an eligible New Zealand citizen, have undertaken in
               writing to adopt the applicant; and

   (d)  before 3 July 1996, either:

        (i)    child welfare authorities of an Australian State or Territory
               had approved the prospective adoptive parent or parents as
               suitable adoptive parents for the applicant; or

        (ii)   the relevant authorities of the overseas country had approved
               the departure of the applicant:

                (A)  for adoption in Australia; or

                (B)  in the custody of the prospective adoptive parent or
                     parents; as the case requires.". 3.2 Clause 102.222: Omit
                     the clause, substitute:

"102.222 The sponsorship of the applicant is:

   (a)  in the case of an applicant who is a child for adoption referred to in
        subclause 102.221 (3) - by an Australian citizen who is a
        prospective adoptive parent of the child; or

   (b)  in the case of an applicant who is a child for adoption referred to in
        subclause 102.221 (4) - by an Australian permanent resident or an
        eligible New Zealand citizen who is a prospective adoptive parent of
        the child; or

   (c)  in the case of an applicant who is an adopted child referred to in
        subclause 102.221 (2) who was adopted on or after 3 July 1996 - by an
        Australian citizen who is an adoptive parent of the child; or

   (d)  in the case of an applicant who is an adopted child referred to in
        subclause 102.221 (2) who was adopted before 3 July 1996 - by an
        Australian citizen, an Australian permanent resident or an
        eligible New Zealand citizen who is an adoptive parent of the child.".
        4. Part 103 (Parent) 4.1 Clause 103.221: Omit the clause, substitute:

"103.221 The applicant is the parent of a person who is a settled Australian
citizen.". 4.2 Clause 103.222: Omit the clause, substitute:

"103.222 The sponsorship of the applicant:

   (a)  is the sponsorship referred to in clause 103.212; and

   (b)  is by a settled Australian citizen; and

   (c)  has been approved by the Minister and is still in force.". 4.3 Clause
        103.223: Omit the clause, substitute:

"103.223 The applicant satisfies the balance of family test in regulation 1.05
as in force on 1 October 1996.".

5. Part 104 (Preferential Family) 5.1 Clause 104.221: Omit the clause,
substitute:

"104.221 (1) The applicant meets, or continues to meet, the requirements of
subclause (2), (3) or (4).

"(2) The applicant meets the requirements of this subclause if:

   (a)  the applicant is an aged dependent relative, or a remaining relative,
        of a person (in this subclause called 'the Australian relative') who
        is an Australian citizen; and

   (b)  the applicant is sponsored:

        (i)    if the Australian relative has turned 18 and is a settled
               Australian citizen - by the Australian relative; or

        (ii)   in any other case - by the spouse of the Australian relative,
               if the spouse:

                (A)  cohabits with the Australian relative; and

                (B)  is a settled Australian citizen; and

                (C)  has turned 18.

"(3) The applicant meets the requirements of this subclause if:

   (a)  the applicant is an orphan relative, or a special need relative, of a
        person (in this subclause called 'the Australian relative') who is an
        Australian citizen; and

   (b)  the applicant is sponsored:

        (i)    if the Australian relative has turned 18 - by the Australian
               relative; or

        (ii)   in any other case - by the spouse of the Australian relative,
               if the spouse:

                (A)  cohabits with the Australian relative; and

                (B)  is an Australian citizen; and

                (C)  has turned 18.

"(4) The applicant meets the requirements of this subclause if:

   (a)  the applicant is an orphan relative of a person (in this subclause
        called 'the Australian relative') who is an Australian
        permanent resident or an eligible New Zealand citizen; and

   (b)  the applicant is sponsored:

        (i)    if the Australian relative has turned 18 - by the Australian
               relative; or

        (ii)   in any other case - by the spouse of the Australian relative,
               if the spouse:

                (A)  cohabits with the Australian relative; and

                (B)  is an Australian permanent resident or an eligible New
                     Zealand citizen; and

                (C)  has turned 18; and

   (c)  the Minister is satisfied that there are compelling compassionate
        circumstances that justify the grant of the visa.". 6. Part 110
        (Interdependency) 6.1 Clause 110.221: Omit the clause, substitute:

"110.221 The applicant is in an interdependent relationship with an Australian
citizen who has turned 18.". 6.2 Clause 110.222: Omit the clause, substitute:

"110.222 The sponsorship of the applicant:

   (a)  is by the same sponsor as at the time of application; and

   (b)  is by an Australian citizen; and

   (c)  has been approved by the Minister and is still in force.". 6.3 Clause
        110.223: Omit the clause, substitute:

"110.223 The applicant continues to be in an interdependent relationship with
the person with whom the applicant was in an interdependent relationship at
the time of application, and that person is an Australian citizen.". 7. Part
300 (Prospective Marriage) 7.1 Clause 300.221: Omit the clause, substitute:

"300.221 The applicant intends to marry the person who was the applicant's
prospective spouse at the time of application, and that person is an
Australian citizen.

"300.221AA The applicant continues to satisfy the criteria in clauses 300.214,
300.215 and 300.216.". 7.2 Clause 300.222: Omit the clause, substitute:

"300.222 The sponsorship of the applicant:

   (a)  is the sponsorship referred to in clause 300.213; and

   (b)  is by an Australian citizen; and

   (c)  has been approved by the Minister and is still in force.".

8. Part 802 (Child) 8.1 Clause 802.221: Omit the clause, substitute:

"802.221 (1) The applicant is a dependent child of, and is nominated for the
grant of the visa by, a person (in this clause called 'the nominator') who:

   (a)  is an Australian citizen; or

   (b)  meets the requirements of subclause (2), (3) or (4).

"(2) The nominator meets the requirements of this subclause if:

   (a)  the applicant has not turned 18 and was born outside Australia; and

   (b)  the nominator:

        (i)    both:

                (A)  is an Australian permanent resident (other than an
                     Australian permanent resident who is, or has been, the
                     holder of a permanent humanitarian visa); and

                (B)  at the time the applicant was born, was the holder of a
                     permanent visa; or

        (ii)   is an eligible New Zealand citizen.

"(3) The nominator meets the requirements of this subclause if:

   (a)  the nominator is an Australian permanent resident (other than an
        Australian permanent resident who is, or has been, the holder of a
        permanent humanitarian visa); and

   (b)  the applicant was included in the application for a permanent visa of
        the nominator.

"(4) The nominator meets the requirements of this subclause if:

   (a)  the applicant has not turned 18; and

   (b)  the nominator is:

        (i)    an Australian permanent resident (other than an Australian
               permanent resident who is, or has been, the holder of a
               permanent humanitarian visa); or

        (ii)   an eligible New Zealand citizen; and

   (c)  either:

        (i)    the nominator is granted custody of the applicant (whether by
               an order of the Family Court of Australia or under the laws of
               another country); or

        (ii)   both:

                (A)  a parent of the applicant who is not the nominator dies
                     or becomes incapable of caring for the applicant; and

                (B)  the Minister is satisfied that it is appropriate in the
                     circumstances for the visa to be granted.". 9. Part 804
                     (Aged Parent) 9.1 Clauses 804.221 and 804.222: Omit the
                     clauses, substitute:

"804.221 The applicant is nominated for the grant of the visa by a person (in
this clause called 'the nominator') who is:

   (a)  a settled Australian citizen; and

   (b)  an adult child of the applicant; and the applicant is an aged parent
        of the nominator.". 9.2 Clause 804.223: Omit the clause, substitute:

"804.223 The applicant satisfies the balance of family test in regulation 1.05
as in force on 1 October 1996.". 10. Part 806 (Family) 10.1 Clause 806.221:
Omit the clause, substitute:

"806.221 (1) The applicant meets, or continues to meet, the requirements of
subclause (2) or (3).

"(2) The applicant meets the requirements of this subclause if the applicant
is an aged dependent relative, an orphan relative, a remaining relative or a
special need relative of another person who:

   (a)  is a settled Australian citizen; and

   (b)  is usually resident in Australia; and

   (c)  has nominated the applicant for the grant of a visa.

"(3) The applicant meets the requirements of this subclause if:

   (a)  the applicant is an orphan relative of another person who:

        (i)    is a settled Australian permanent resident or a settled
               eligible New Zealand citizen; and

        (ii)   is usually resident in Australia; and

        (iii)  has nominated the applicant for the grant of a visa; and

   (b)  the Minister is satisfied that there are compelling compassionate
        circumstances that justify the grant of the visa.".

11. Part 820 (Spouse) 11.1 Clause 820.221: Omit the clause, substitute:

"820.221 (1) In the case of an applicant referred to in subclause 820.211 (2),
the applicant:

   (a)  is:

        (i)    the spouse of an Australian citizen; or

        (ii)   the spouse of a person who meets the requirements of subclause
               (2); or

   (b)  meets the requirements of subclause (4) or (5).

"(2) A person meets the requirements of this subclause if:

   (a)  the person holds a permanent visa granted on the basis of an
        application made before 3 July 1996; and

   (b)  before the person's permanent visa was granted, the person was in a
        spouse relationship with the applicant of which Immigration was
        informed before the person's permanent visa was granted; and

   (c)  the person is not, and has not been, the holder of a permanent
        humanitarian visa.

"(3) In the case of an applicant referred to in subclause 820.211 (3), (4) or
(5), the applicant:

   (a)  continues to meet the requirements of the applicable subclause; or

   (b)  meets the requirements of subclause (4) or (5).

"(4) The applicant meets the requirements of this subclause if the applicant:

   (a)  would meet the requirements of subclause (1) or continue to meet the
        requirements of subclause 820.211 (3), (4) or (5) except that the
        nominating spouse has died; and

   (b)  satisfies the Minister that the applicant would have continued to be
        the spouse of the nominating spouse if the nominating spouse had not
        died; and

   (c)  has developed close business, cultural or personal ties in Australia.

"(5) An applicant meets the requirements of this subclause if:

   (a)  the applicant would meet the requirements of subclause (1), or
        continue to meet the requirements of subclause 820.211 (3), (4) or
        (5), except that the relationship between the applicant and the
        nominating spouse has ceased; and

   (b)  either or both of the following circumstances applies:

        (i)    either or both of the following:

                (A)  the applicant;

                (B)  a dependent child of the nominating spouse or of the
                     applicant or of both of them; has suffered domestic
                     violence committed by the nominating spouse;

        (ii)   the applicant has custody or joint custody of at least 1 child
               in respect of whom:

                (A)  a court has granted joint custody or access to the
                     nominating spouse; or

                (B)  the nominating spouse is subject to a formal maintenance
                     obligation.". 12. Part 826 (Interdependency) 12.1
                     Subclause 826.221 (2): Omit the subclause, substitute:

"(2) Subject to subclause (2A), the applicant meets the requirements of this
subclause if he or she continues to meet the requirements in subclause 826.212
(2).

"(2A) The applicant does not meet the requirements of subclause (2) unless the
nominator of the applicant is an Australian citizen.". 12.2 Paragraph 826.221
(3) (a): Omit "continue to meet the requirements specified in subclause
826.212 (2)", substitute "meet the requirements of subclause (2)".