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MIGRATION (1993) REGULATIONS (AMENDMENT) 1993 NO. 235
EXPLANATORY STATEMENTSTATUTORY RULES 1993 No. 235
Issued by the Authority of the Minister for Immigration and Ethnic Affairs
Migration Act 1958
Migration (1993) Regulations (Amendment)
Section 181 of the Migration Act 1958 (the Act) provides for the Governor-General to make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Without limiting the generality of section 181, sections 23 and 33 of the Act enable the Governor-General to make regulations providing for different classes of visas and entry permits.
In addition, particular provision is made for the making of regulations in relation to the following matters:
- section 36 of the Act provides that the regulations may prescribe a change in a person's circumstances which will permit a further application to be made by a person who has been refused an entry permit, has remained in Australia and no deportation order pursuant to section 59 has been made, and has applied for a review and would otherwise be prevented by section 121 from making a further application;
- section 37 of the Act provides that the regulations may prescribe a change in an illegal entrant's circumstances which will permit a further application to be made where the illegal entrant is not a person referred to in section 36, has entered Australia and remains in Australia and no deportation order pursuant to section 59 has been made, and has been refused an entry permit; and
- paragraph 181(1)(a) of the Act provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the Regulations.
The purpose of the Regulations is:
- to create a new class of entry permit - Class 774 (designated persons (spouse) (temporary)) entry permit. The main features of the new Class 774 entry permit are:
• persons eligible for grant of the new Class 774 entry permit are designated persons under section 54K of the Act who are in custody under section 54L of the Act, who are married to and are nominated by an Australian citizen or permanent resident, and whose marital relationship with that Australian citizen or permanent resident is both genuine and continuing. For the purposes of grant of this entry permit, "marriage" does not include a de facto relationship; the entry permit may also be granted to the dependent children of persons who satisfy the criteria, provided the dependent children are in Australia and are also in custody under section 54L of the Act;
• a designated person under section 54K of the Act is a person who has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 November 1993, and has not presented a visa, and is in Australia, and has not been granted an entry permit, and who is a person to whom the Department has given a designation by:
(i) determining and recording which boat he or she was on; and
(ii) giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat;
and includes a non-citizen born in Australia whose mother is a designated person;
• a person who is a designated person under section 54K must be kept in custody under section 54L unless the person is released from custody pursuant to subsection 54L(2);
• grant of the entry permit, which is valid for 28 days, enables the designated person to be released from custody under paragraph 541,(2)(b) of the Act;
• the person may then apply as a person legally in Australia for a Class 820 (extended eligibility (spouse)) entry permit, a Class 801 (spouse (after entry)) entry permit, or any other entry permit for which they may be eligible;
- to amend Schedule 10 (Amounts of Fees in Certain Currencies) of the Migration (1993) Regulations to take account of variations in the exchange rate since the Migration (1993) Regulations commenced on 1 February 1993; and
- to make a number of changes to the criteria to be satisfied for the grant of a Class 127 (business skills) visa and a Class 129 (State/Territory sponsored business skills) visa. These changes have the effect of.
• lowering from the equivalent of $350,000 to the equivalent of $300,000 the minimum net business assets which an applicant (or applicant and spouse together) for a Class 127 visa must have had over a specified period;
• providing that applicants for a Class 127 visa or a Class 129 visa must have owned those assets at the specified level in any two of the preceding four fiscal years instead of any three of the preceding four fiscal years;
• providing that applicants for a Class 127 visa or a Class 129 visa need not own an interest in a business at the time of applying for the visa, provided they did own an interest in a business in any two of the past four fiscal years;
• removing the requirement for grant of a Class 127 visa or a Class 129 visa that the businesses of applicants must not have shown a trading loss in more than one of the preceding four fiscal years;
• adjusting the business skills points test to award 25 points to applicants aged between 45 and 50 years (raised from 20 points), and to increase from 15 to 20 the points awarded to applicants aged between 25 and 30 years;
• introducing the concept of a "main business" to mean a business in which the value of the applicant's interest, or the combined interest of the applicant and his or her spouse, is or was at least 10% of the total value of the business and the applicant maintains or maintained a direct and continuous involvement in management of the business from day to day and in making decisions that affect the overall direction and performance of the business; and
• permitting the applicant to nominate up to two main businesses which may be combined for assessing turnover and number of employees against the business skills points test.
The regulations amending the criteria to be met for the Class 127 (business skills) visa and the Class 129 (State/Territory sponsored business skills) visa commence on 13 September 1993. The regulations amending Schedule 10 (Amounts of Fees in Certain Currencies) commence on 1 October 1993.
The remainder of the Regulations commence on gazettal.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Regulation 1 - Commencement
Subregulation 1.1 provides for regulations 5 and 7 to commence on 13 September 1993.
Subregulation 1.2 provides for regulation 8 to commence on 1 October 1993.
Regulation 2 - Amendment
This regulation provides for the Migration (1993) Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 2.10 (Prescribed change in circumstances (paragraphs 36(1)(a) and 37(2)(a) of Act)
This regulation adds a new paragraph 2.10(n) to the Migration (1993) Regulations. The purpose of the new paragraph is to prescribe as a change of circumstances for the purposes of paragraphs 36(1)(a) and 37(2)(a) of the Act satisfaction of the criteria for the grant of a Class 774 (designated persons (spouse) (temporary)) entry permit. For details of the new Class 774 entry permit, created by these Regulations, see the notes on regulation 6, below. The effect of the provision of the new paragraph 2.10(n) is to enable a person who has applied for an entry permit and been refused but has remained in Australia (whether or not a review of the refusal has been sought) to make a further application for an entry permit if the person is able to satisfy the criteria for grant of a Class 774 entry permit.
Regulation 4 - Schedule 1 (Classification of visas and entry permits)
This regulation inserts a new item 2801A in Division 2.8 - Group 2.8 (Miscellaneous) of Schedule 1 of the Migration (1993) Regulations. The new item refers to the Class 774 (designated persons (spouse) (temporary)) entry permit, created by these Regulations. For further details of the new Class 774 entry permit, see the notes on regulation 6, below.
Regulation 5 - Schedule 2. Chapter 1.1 (Migrant visas and entry permits)
Part 127 - Class 127 (Business skills) visa and entry permit
Subregulation 5.1 amends the definition of "fiscal year" in subclause 127.131(1) of the Migration (1993) Regulations by substituting the term "main business" for "principal business" wherever it occurs in that definition. The term "main business" is added to the definitions in clause 127.131 by the new subclause 127.131(3) inserted by subregulation 5.2 of these Regulations. For further details of the term "main business", please see the notes on subregulation 5.2, below.
Subregulation 5.2 inserts two new subclauses 127.131(3) and 127.131(4) in clause 127.131 of the Migration (1993) Regulations. The purpose of the new subclause 127.131(3) is to define the meaning of the term "main business" in Part 127, as the term is introduced by these Regulations. For these purposes, a business is an applicant's "main business" if the applicant maintains or maintained a direct and continuous involvement in management of the business from day to day and in making decisions that affect the overall direction and performance of the business, and the value of the applicant's interest, or the interests of the applicant and his or her spouse together, in the business is or was at least 10% of the total value of the business. The new subclause 127.131(4) provides that if an applicant owns, or owned, an interest in more than one business meeting these requirements, the applicant may nominate no more than two of those businesses as main businesses.
Subregulation 5.3 omits clause 127.321 of the Migration (1993) Regulations and substitutes a new clause 127.321. The effect of the provision of the new clause is that the criterion can be satisfied by an applicant who does not currently own an interest in a business or businesses but who did own such an interest in any two of the past four fiscal years immediately preceding the making of the application. This amendment removes a requirement that the applicant must own a business interest at the time of application. It is not the policy intention that an applicant for a Class 127 visa who meets all the other criteria should be ineligible because he or she does not currently own a business interest.
Subregulation 5.4 omits subclause 127.322(2) of the Migration (1993) Regulations and substitutes a new subclause 127.322(2), which provides that the net assets of the applicant, or of the applicant and his or her spouse together, in a business or businesses are to be assessed over any two of the preceding four fiscal years. Previously the applicant's assets, or the assets of the applicant and his or her spouse together, were assessed in three of the preceding four fiscal years. The new subclause 127.322(2) also provides that it is a prescribed criterion for the grant of a Class 127 visa that the net assets of the applicant, or of the applicant and his or her spouse together, in a business or businesses in each of those years were not less than the equivalent of 300,000 Australian dollars. Previously, the net assets were required to amount to not less than 350,000 Australian dollars.
Subregulation 5.5 omits clause 127.323 of the Migration (1993) Regulations and substitutes a new clause 127.323. The new clause 127.323 substantially repeats the provisions of the omitted clause, but substitutes the term "main business or main businesses" for the previous term "principal business". Provision for the term "main business" in Part 127 is made by the new subclauses 127.131(3) and 127.131(4) inserted in the Migration (1993) Regulations by subregulation 5.2 of these Regulations. For further details, please see the notes on subregulation 5.2, above.
Subregulation 5.6 omits clause 127.324 of the Migration (1993) Regulations. The effect of omitting clause 127.324 is to remove the requirement that the principal (or main) business of an applicant for a Class 127 visa must not have shown a loss in more than one of the preceding four fiscal years.
Part 129 - Class 129 (State/Territory sponsored business skills) visa and entry permit
Subregulation 5.7 amends the definition of "fiscal year" in subclause 129.131(1) of the Migration (1993) Regulations by substituting the term "main business" for "principal business" wherever it occurs in that definition. The term "main business" is added to the definitions in clause 129.131 by the new subclause 129.131(3) inserted by subregulation 5.8 of these Regulations. For further details of the term "main business", please see the notes on subregulation 5.8, below.
Subregulation 5.8 inserts two new subclauses 129.131(3) and 129.131(4) in clause 129.131 of the Migration (1993) Regulations. The purpose of the new subclause 129.131(3) is to define the meaning of the term "main business" in Part 129, as the term is introduced by these Regulations. For these purposes, a business is an applicant's "main business" if the applicant maintains or maintained a direct and continuous involvement in management of the business from day to day and in making decisions that affect the overall direction and performance of the business, and the value of the applicant's interest, or of the interests of the applicant and his or her spouse together, in the business is or was at least 10% of the total value of the business. The new subclause 129.131(4) provides that if an applicant owns, or owned, an interest in more than one business meeting these requirements, the applicant may nominate no more than two of those businesses as main businesses.
Subregulation 5.9 amends clause 129.321 of the Migration (1993) Regulations so that the criterion can be satisfied by an applicant who does not currently own an interest in a business or businesses but who did own such an interest in any two of the past four fiscal years immediately preceding the making of the application. The effect of this amendment is to remove a requirement that the applicant must own a business interest at the time of application. It is not the policy intention that an applicant for a Class 129 visa who meets all the other criteria should be ineligible because he or she does not currently own a business interest.
Subregulation 5.10 amends subclause 129.322(2) of the Migration (1993) Regulations to provide that the net assets of the applicant, or of the applicant and his or her spouse together, in a business or businesses are to be assessed over any two of the preceding four fiscal years. Previously the applicant's assets, or the assets of the applicant and his or her spouse together, were assessed in three of the preceding four fiscal years.
Subregulation 5.11 omits clause 129.323 of the Migration (1993) Regulations and substitutes a new clause 129.323. The new clause 129.323 substantially repeats the provisions of the omitted clause, but substitutes the term "main business or main businesses" for the previous term "principal business". Provision for the term "main business" in Part 129 is made by the new subclauses 129.131(3) and 129.131(4) inserted in the Migration (1993) Regulations by subregulation 5.8 of these Regulations. For further details, please see the notes on subregulation 5.8, above.
Subregulation 5.12 amends the Migration (1993) Regulations by omitting clause 129.324. The effect of this amendment is to remove the requirement that the business of an applicant for a Class 129 visa must not have shown a loss in more than one of the preceding four fiscal years.
Regulation 6 - Schedule 2. Chapter 2.8 (Miscellaneous visas and entry permits)
This regulation inserts a new Part 774 in Chapter 2.8 of Schedule 2 of the Migration (1993) Regulations - Class 774 (designated persons (spouse) (temporary)) entry permit. The new Part 774 sets down the criteria to be met for the grant of the new Class 774 entry permit, created by these Regulations, as well as the period of validity of the entry permit and the conditions to be imposed on the entry permit.
The Class 774 (designated persons (spouse) (temporary)) entry permit may be applied for only if the applicant has entered Australia and is in custody under section 54L of the Act. At the time of application the applicant must be either:
• a designated person within the meaning of section 54K of the Act who is in custody under section 54L of the Act, and who is married to an Australian citizen or an Australian permanent resident in a marriage recognised for the purposes of section 12 of the Act, and who is nominated by that Australian citizen or permanent resident; or
• the dependent child of a person referred to above and the dependent child must also be nominated by his or her parent's Australian citizen or permanent resident spouse.
There is no application fee.
For an applicant who is not a dependent child, at the time of decision the Minister must be satisfied that the marital relationship (which does not include a de facto relationship) between the applicant and his or her spouse is both genuine and continuing. If the applicant is a dependent child, at the time of decision the parent of the applicant must have been granted a Class 774 entry permit. All applicants are required to meet certain public interest criteria.
The entry permit is valid for 28 days, and is subject to the condition that it is not a valid temporary entry permit for the purposes of section 47 of the Act.
The purpose of the grant of the entry permit is to enable a designated person who is married to an Australian citizen or an Australian permanent resident (or is the dependent child of such a person) to be released from custody pursuant to paragraph 54L(2)(b) of the Act, as the holder of a valid entry permit. The person may then apply for the grant of a Class 820 (Extended eligibility (spouse)) entry permit and a Class 801 (Spouse (after entry)) entry permit, or any other entry permit for which the person is eligible. Approval of those applications would be subject to the applicant satisfying the prescribed criteria.
Regulation 7 - Schedule 8 (Business skills points test - attributes and points)
Subregulation 7.1 omits Part 1, Division 1 of Schedule' 8 of the Migration (1993) Regulations, and substitutes a new Part 1, Division 1. The only changes implemented in the new Part 1, Division 1 involve substitution of the term "main business or main businesses" for "principal business". Consequent changes were necessary to each item of the omitted Part 1, Division 1, as they referred only to one business. The changes made are:
• in the heading of the Division the term "main business or main businesses" is substituted for "Principal business", and Classes 127 and 129 visas are specifically cited as a clarifying amendment;
• in items 8101 to 8103 inclusive:
- the new paragraph (a) provides that the applicant's main business or the applicant's main businesses together must have had the specified annual turnover to attract the relevant points; and
- the new paragraph (b) provides that the applicant's main business, or at least one of the applicant's main businesses, had its major activity in a designated industry sector; and
• in items 8104 and 8106:
- the new paragraph (a) provides that the applicant's main business or the applicant's main businesses together must have had the specified annual turnover to attract the relevant points;
- the new paragraph (b) provides that to attract the relevant points the applicant's main business or the applicant's main businesses together must have employed the specified number of full-time employees; and
- the new paragraph (c) provides that to attract the relevant points the applicant's main business, or at least one of the applicant's main businesses, had its major activity in a designated industry sector; and
• in item 8105, and items 8107 to 8110 inclusive:
- the new paragraph (a) provides that to attract the relevant points the applicant's main business or the applicant's main businesses together must have had the specified annual turnover to attract the relevant points; and
- the new paragraph (b) provides that to attract the relevant points the applicant's main business or the applicant's main businesses together must have employed the specified number of full-time employees.
Subregulation 7.2 omits the heading of Part 1, Division 2 of Schedule 8 of the Migration (1993) Regulations and substitutes a new heading. The new heading specifically cites Classes 128 and 130 visas as these are the visas to which the items in Part 1, Division 2 are relevant. This is a clarifying amendment and it does not involve any substantive change in policy.
Subregulation 7.3 amends item 8202, Part 2 of Schedule 8 by omitting "20" in column 3 and substituting "25". The effect of this amendment is to raise the number of points awarded to an applicant who is not less than 45 years but under 50 years.
Subregulation 7.4 amends item 8203, Part 2 of Schedule 8 by omitting "15" in column 3 and substituting "20". The effect of this amendment is to raise the number of points awarded to an applicant who is not less than 25 years but under 30 years.
Regulation 8 - Schedule 10 (Amounts of fees in certain currencies)
Subregulation 8.1 omits Schedule 10 of the Migration (1993) Regulations, and substitutes a new Schedule 10. The new Schedule 10 has the effect of updating the amounts of fees in the currencies shown on the Schedule, to take account of variations in exchange rates since Schedule 10 came into effect on the commencement of the Migration (1993) Regulations on 1 February 1993.