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MIGRATION AMENDMENT REGULATIONS 1999 (NO. 1) 1999 NO. 8
EXPLANATORY STATEMENTSTATUTORY RULES 1999 NO. 8
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 1999 (No. 1)
Section 504 of the Migration Act 1958 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act to prescribe all matters which are required or permitted to be prescribed by the, Act 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 following powers:
- subsection 31(3) of the Act provides that the Regulations may prescribe criteria for visas
of a specified class;
- section 41 of the Act provides that, without limiting the generality of the section, the
regulations may provide that visas or visas of a specified class are subject to specified
conditions, including but not limited to a condition that a further visa cannot be granted
and a condition restricting work rights;
- subsection 41(2A) of the Act provides that the Minister may, in prescribed
circumstances, by writing, waive a condition of a kind described in paragraph 41(2)(a) to
which a particular visa is subject under the Regulations made for the purposes of that
paragraph or under subsection (3);
- subsection 45(2) of the Act provides that, without limiting the generality of subsection
45(1), the Regulations may prescribe the way for making applications for a visa of a
specified class in specified circumstances; and
- section 45B of the Act provides that the amount of visa application charge is the
amount, not exceeding the visa application charge limit, prescribed in relation to the
application.
The purposes of the Regulations are to amend the Migration Regulations 1994 to:
- require AusAID support for applications for most temporary , permanent visas made
by AusAID students and former AusAID students who have not, since completing their courses
of study, been outside Australia for two years or more (items 1, 3-4, 7-9 and 15-80);
- remove references to the Australian International Development Assistance Bureau, as this body no longer exists (item 2);
- provide circumstances for the waiver of the the "no further stay" condition (item 8503 of Schedule 8 to the Regulations), including that there must be compelling and compassionate circumstances which have developed since the visa holder was granted the visa which had the "no further stay" condition imposed (item 6); and
- permit the grant of a Subclass 050 visa without the mandatory "no work" condition to an applicant who holds a Subclass 050 visa subject to the "no work" condition where the Minister is personally considering whether to exercise his or her power to substitute a more favourable decision, or where the Minister has decided to substitute a more favourable decision but a substantive visa cannot be granted because of a section 85 cap, and the Minister is satisfied that the applicant has a compelling need to work (items 11 and 12);
- make a number of technical and consequential amendments (items 5, 10, 13-14, 18-19, 27-28, 37-38, 5354, 57, 63-66, 68-69 and 75-77).
Details of Regulations are set out in the Attachment.
The Regulations commence on 1 March 1999.
ATTACHMENT
Regulation 1 - Name of regulation
This regulation provides that these regulations are the Migration Amendment Regulations 1999 (No. 1).
Regulation 2 --Commencement
This regulation provides that these regulations commence on 1 March 1999.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 amends the Migration Regulations 1994.
Schedule 1 - Amendments of Migration Regulations 1994
Item 1 - Regulation 1.03, definition of assisted student
This item omits the reference to AusAID from the definition of "assisted student", as students assisted by AusAID will be covered by the new term "AusAID student".
Item 2 - Regulation 1.03, definition of AusAID
This item omits the reference to the Australian International Development Assistance Bureau from the definition of "AusAID", as this body no longer exists.
Item 3 - Regulation 1.03
This item amends regulation 1.03 to insert a definition of "AusAID Minister" and to provide that "AusAID recipient" and "AusAID student" have the meanings given by new regulation 1.04A (inserted by these regulations).
Item 4 - After regulation 1.04
This item inserts new regulation 1.04A, which defines "AusAID recipient' and "AusAID student'.
An AusAID recipient is a person who holds a Subclass 560 or 562 visa (or equivalent former visa) granted because the person was a student studying with the assistance of AusAID (or whose last substantive visa was such a visa), who has ceased their studies and has not spent at least 2 years outside Australia since ceasing the studies. An AusAID student is a person who has the approval of AusAID to study in Australia, and who is either the holder of a Student (Temporary) (Class TU) visa (or equivalent former visa) granted because of that approval and has not ceased their studies, or is an applicant for such a visa.
Item 5 - Subregulation 2.05(3)
This item makes a technical amendment.
Item 6 - After subregulation 2.05(3)
This item inserts new subregulation 2.05(4) at the end of regulation 2.05, pursuant to subsection 41(2A) of the Act.
New subregulation 2.05(4) sets out the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act. The condition referred to in that paragraph is contained in item 8503 of Schedule 8 to the Regulations.
Item 8503 is known as "condition 8503". Condition 8503 is a discretionary visa condition which may be imposed on most subclasses of temporary residence, student or visitor visas as listed in the relevant Part of Schedule 2. It is imposed most often on visitor visas. When imposed, it prevents a visa holder from being entitled to the grant of a substantive visa, other than a protection visa, while the visa holder remains in Australia.
The circumstances in which the Minister may waive this condition are set out in paragraphs 2.05(4)(a) to (c) (inclusive).
New paragraph 2.05(4)(a) provides that compelling and compassionate circumstances must have developed since the person was granted the visa that was subject to the condition. Examples of compelling and compassionate circumstances include, but are not limited to, the following situations:
* the death, serious illness or serious medical condition of a member of a visa holder's close family, where the visa holder is required to remain temporarily to provide assistance or support;
* if a visa holder has an accident or contracts an illness or medical condition after arriving in Australia, where it would be unreasonable to expect the person to depart until he or she is considered fit to travel; or
* the occurrence of a natural disaster, or warfare or civil political strife in the visa holder's country of usual residence as a result of which it would be unreasonable to expect the visa holder to return at the time of expiry of the visa which has the condition imposed.
New paragraph 2.05(4)(b) provides that where the Minister has already refused to waive the condition, the Minister must be satisfied that the circumstances are substantially different from those considered previously.
New paragraph 2.05(4)(c) provides that where a person asks the Minister to waive the condition, that request must be in writing. It is intended that the Minister will be able to waive condition 8503 of his own volition, or at the request of a person. However, where a person wishes to make a request that the Minister waive the condition, such a request must be in writing.
Item 7 - Schedule 1, sub-subparagraph 1222(2)(a)(i)(C)
This item amends subparagraph 1222(2)(a)(i) to include, as persons who are not subject to a first instalment of the visa application charge when applying for a Student (Temporary) (Class TU) visa, persons seeking a visa in order to study a course for which AusAID approval has been given, and their family members.
Item 8 - Schedule 1, subparagraph 1222(2)(a)(ii)
This item amends subparagraph 1222(2)(a)(ii) to make it clear that the charge imposed by that subparagraph does not apply to persons mentioned in subparagraph 1222(2)(a)(i).
Item 9 - Schedule 1, subparagraph 1222(2)(a)(iii)
This item amends subparagraph 1222(2)(a)(iii) to make it clear that the charge imposed by that subparagraph does not apply to persons mentioned in subparagraph 1222(2)(a)(i).
Item 10 - Schedule 2, subclause 050.212(1)
This item makes a minor technical amendment as a consequence of new subclause 050.212(6A) (inserted by these Regulations).
Item 11 - Schedule 2, after subclause 050.212(6)
This item inserts new subclause 050.212(6A).
New subclause 050.212(6A) provides that an applicant meets the requirements of the subclause if.
* the applicant holds a Bridging E (Class WE) visa granted on the basis of the applicant meeting the requirements of subclause (6); and
* either:
- the Minister is personally considering whether to exercise his or her powers to substitute a more favourable decision under section 345, 35 1, 391, 417 or 454 of the Act; or
- the Minister has decided under section 345, 351, 391, 417 or 454 of the
Act to substitute a more favourable decision but the applicant cannot be
granted a substantive visa because of a section 85 cap; and
the Minister is satisfied that the applicant has a compelling need to work.
Item 12 - Schedule 2, clauses 050.612A and 050.613
This item substitutes clauses 050.612A and 050.613.
New clause 050.612A is amended so that paragraph 050.612A(2)(b) makes it clear that clause 050.612A does not apply to an applicant who meets the requirements of new subclause 050.212(6A).
New clause 050.613 is amended to apply to an applicant who meets the requirements of new subclause 050.212(6A), whether or not the applicant is an applicant to whom another clause applies. In addition, condition 8104 (the holder must not engage in work for more than 20 hours a week while the holder is in Australia) is omitted because the purpose of subclause 050.212(6A) is to allow an applicant to work where he or she, among other things, demonstrates a compelling need to work.
Item 13 - Schedule 2, subclause 050.613A(2)
This item makes a technical amendment.
Item 14 - Schedule 2, clause 410.227
This item makes a technical amendment.
Item 15 - Schedule 2, paragraph 410.227(c)
Item 16 - Schedule 2, clause 410.227
Item 17 - Schedule 2, after clause 410.325
These items amend clause 410.227 and insert new clause 410.326 to make it a primary and secondary criterion of the grant of a Subclass 410 (Retirement) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 410.227(2) and 410.326(2) provide that the Minister may waive this requirement if waiver is justified by the circumstances of the case.
Item 18 - Schedule 2, sub-subparagraph 411.224(b)(ii)(B)
Item 19 - Schedule 2, paragraph 411.224(c)
These items make technical amendments.
Item 20 - Schedule 2, after clause 411.227
Item 21 - Schedule 2, after clause 411.325
These items insert clauses 411.228 and 411.326 to make it a primary and secondary criterion for the grant of a Subclass 411 (Exchange) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 411.228(2) and 411.326(2) provide that the Minister may waive this requirement if waiver is justified by the circumstances of the case.
Item 22 - Schedule 2, after clause 415.231
Item 23 - Schedule 2, after clause 415.325
These items insert new clauses 415.232 and 415.326 which make it a primary and secondary criterion for the grant of a Subclass 415 (Foreign Government Agency) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 415.232(2) and 415.326(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 24 - Schedule 2, after clause 416.227
Item 25 - Schedule 2, after clause 416.324
These items insert new clauses 416.228 and 416.325 which make it a primary and secondary criterion for the grant of a Subclass 416 (Special Program) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 416.228(2) and 416.325(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 26 - Schedule 2, after clause 417.225
This item inserts new clause 417.226, which makes it a criterion for the grant of a Subclass 417 (Working Holiday) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclause 417.226(2) provides that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 27 - Schedule 2, subparagraph 418.229(c)(ii) Item 28 - Schedule 2, paragraph 418.229(d)
These items make technical amendments.
Item 29 - Schedule 2, after clause 418.229
Item 30 - Schedule 2, after clause 418.325
These items insert new clauses 418.229A and 418.326 which make it a primary and secondary criterion for the grant of a Subclass 418 (Educational) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 418.229A(2) and 418.326(2) provide that the Minister may waive this requirement if waiver is justified by the circumstances of the case.
Item 31 - Schedule 2, after clause 419.229
Item 32 - Schedule 2, after clause 419.324
These items insert new clauses 419.230 and 419.325 which make it a primary and secondary criterion for the grant of a Subclass 419 (Visiting Academic) visa to an AusAID recipient or AusAID student, the applicant has the support of AusAID for the grant of the visa. Subclauses 419.230(2) and 419.325(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 33 - Schedule 2, after clause 420.230
Item 34 - Schedule 2, after clause 420.325
These items insert new clauses 420.231 and 420.326 which make it a primary and secondary criterion for the grant of a Subclass 420 (Entertainment) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 420.231(2) and 420.326(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 35 - Schedule 2, after clause 421.230
Item 36 - Schedule 2, after clause 421.325
These items insert new clauses 421.231 and 421.326 which make it a primary and secondary criterion for the grant of a Subclass 421 (Sport) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 421.231(2) and 421.326(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
ltem 37 - Schedule 2, subparagraph 422.227(3)(d)(ii)
Item 38 - Schedule 2, paragraph 422.227(3)(e)
These items make technical amendments.
Item 39 - Schedule 2, after clause 422.228
Item 40 - Schedule 2, after clause 422.326
These items insert new clauses 422.229 and 422.327 which make it a primary and secondary criterion for the grant of a Subclass 422 (Medical Practitioner) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 422.229(2) and 422.327(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 41 - Schedule 2, after clause 423.230
Item 42 - Schedule 2, after clause 423.325
These items insert new clauses 423.231 and 423.326 which make it a primary and secondary criterion for the grant of a Subclass 423 (Media and Film Staff) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 423.231(2) and 423.326(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 43 - Schedule 2, after clause 424.231
Item 44 - Schedule 2, after clause 424.326
These items insert new clauses 424.232 and 424.327 which make it a primary and secondary criterion for the grant of a Subclass 424 (Public Lecturer) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 424.232(2) and 424.327(2) provide that the requirement maybe waived by the Minister if waiver is justified by the circumstances of the case.
Item 45 - Schedule 2, after clause 428.229
Item 46 - Schedule 2, after clause 428.324
These items insert new clauses 428.230 and 428.325 which make it a primary and secondary criterion for the grant of a Subclass 428 (Religious Worker) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 428.230(2) and 428.325(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
item 47 - Schedule 2, after clause 432.231
Item 48 - Schedule 2, after clause 432.324
These items insert new clauses 432.232 and 432.325 which make it a primary and secondary criterion for the grant of a Subclass 432 (Expatriate (Temporary)) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 432.232(2) and 432.325(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 49 - Schedule 2, after clause 442.230
Item 50 - Schedule 2, after clause 442.324
These items insert new clauses 442.231 and 442.325 which make it a primary and secondary criterion for the grant of a Subclass 442 (Occupational Trainee) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 442.231(2) and 442.325(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 51 - Schedule 2, after clause 456.221
Item 52 - Schedule 2, after clause 456.327
These items insert new clauses 456.222 and 456.328 which make it a primary and secondary criterion for the grant of a Subclass 456 (Business (Short Stay)) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclauses 456.222(2) and 456.328(2) provide that the requirement may be waived by the Minister if waiver is justified by the circumstances of the case.
Item 53 - Schedule 2, paragraph 457.222(1)(b)
Item 54 - Schedule 2, paragraph 457.222(1)(c)
These items make technical amendments.
Item 55 - Schedule 2, after clause 457.225
This item inserts new clause 457.226 which makes it a primary criterion for the grant of a Subclass 457 (Business (Long Stay)) visa that, if the applicant is an AusAID recipient or AusAID student and is not to be employed under a Regional Headquarter agreement, the applicant has the support of AusAID for the grant of the visa. Subclause 457.226(2) provides that the Minister may waive this requirement if waiver is justified by the circumstances of the case.
Item 56 - Schedule 2, after clause 457.326
This item inserts new clause 457.327 which makes it a secondary criterion for the grant of a Subclass 457 (Business (Long Stay)) visa to an AusAID recipient or AusAID student that the applicant has the support of AusAID for the grant of the visa. Subclause 457.327(2) allows the Minister to waive this requirement if waiver is justified by the circumstances of the case.
item 57 - Schedule 2, subparagraph 560.222(b)(ii)
This item makes a technical amendment.
Item 58 - Schedule 2, clause 560.223
This item substitutes a new clause 560.223 to provide that applicants satisfying the primary criteria for a Subclass 560 (Student) visa who are AusAID recipients or AusAID students must obtain the support of AusAID for the grant of the visa.
Item 59 - Schedule 2, clause 560.323
This item substitutes a new clause 560.323 to provide that secondary applicants for a Subclass 560 (Student) visa who are AusAID recipients or AusAID students must obtain the support of AusAID for the grant of the visa. This is in addition to the requirement that AusAID supports the grant of a visa to a person who is a family member of an AusAID student. Subclause 560.323(2) provides that the Minister may waive the requirement imposed on AusAID recipients and AusAID students if satisfied that waiver is justified by the circumstances of the case.
Item 60 - Schedule 2, paragraph 560.328(b)
This item makes a technical amendment.
Item 61 - Schedule 2, clause 562.223
This item substitutes a new clause 562.223 to ensure that primary applicants for a Subclass 562 (Iranian Postgraduate Student) visa who are AusAID recipients or AusAID students obtain the support of AusAID for the grant of the visa.
Item 62 - Schedule 2, clause 563.222
This item substitutes a new clause 563.222 to provide that applicants for a Subclass 563 (Iranian Postgraduate Student Dependant) visa who are AusAID recipients or AusAID students must obtain the support of AusAID for the grant of the visa. This is in addition to the requirement that AusAID) supports the grant of a visa to an applicant who is the family member of an AusAID students. Subclause 563.222(2) provides for the requirement in respect of AusAID recipients or AusAID students to be waived by the Minister if waiver is justified by the circumstances of the case.
Item 63 - Schedule 2, paragraph 563.228(b)
Item 64 - Schedule 2, subparagraph 675.221(2)G)(ii)
Item 65 - Schedule 2, subparagraph 675.221(2)G)(iii)
Item 66 - Schedule 2, paragraph 675.221(3)(a)
These items make technical amendments.
Item 67 - Schedule 2, after clause 675.221
This item inserts new clause 675.222 which makes it a criterion to be met by all applicants for a Subclass 675 (Medical Treatment (Short Stay)) visa that, if the applicant is an AusAID recipient or AusAID student, the applicant has the support of AusAID for the grant of the visa. Subclause 675.222(2) provides that the Minister may waive this requirement if satisfied that waiver is justified by the circumstances of the case.
Item 68 - Schedule 2, subparagraph 676.221(2)(g)(iii)
Item 69 - Schedule 2, subparagraph 676.221(2)(g)(v)
These items make technical amendments.
Item 70 - Schedule 2, after clause 676.222
This item inserts new clause 676.223 which makes it a criterion to be met by all applicants for a Subclass 676 (Tourist (Long Stay)) visa that, if the applicant is an AusAID recipient or AusAID student, the applicant has the support of AusAID for the grant of the visa. Subclause 676.223(2) provides that the Minister may waive this requirement if satisfied that waiver is justified by the circumstances of the case.
Item 71 - Schedule 2, subparagraph 685.221(2)(j)(iii)
Item 72 - Schedule 2, subparagraph 685.221(2)(j)(iv)
Item 73 - Schedule 2, paragraph 685.221(3)(b)
These items make technical amendments.
Item 74 - Schedule 2, after clause 685.221
This item inserts new clause 685.222 which makes it a criterion to be met by all applicants for a Subclass 685 (Medical Treatment (Long Stay)) visa that, if the applicant is an AusAID recipient or AusAID student, the applicant has the support of AusAID for the grant of the visa. Subclause 685.222(2) provides that the Minister may waive this requirement if satisfied that waiver is justified by the circumstances of the case.
Item 75 - Schedule 2, subparagraph 686.221(2)(g)(v)
Item 76 - Schedule 2, subparagraph 686.221(2)(g)(vi)
Item 77 - Schedule 2, paragraph 686.221(3)(b)
These items make technical amendments.
Item 78 - Schedule 2, after clause 686.221
This item inserts new clause 686.222 which makes it a criterion to be met by all applicants for a Subclass 686 (Tourist (Long Stay)) visa that, if the applicant is an AusAID recipient or AusAID student, the applicant has the support of AusAID for the grant of the visa. Subclause 686.222(2) provides that the Minister may waive this requirement if satisfied that waiver is justified by the circumstances of the case.
Item 79 - Schedule 2, after clause 773.224
This item inserts new clause 773.225 which makes it a criterion for the grant of a Subclass 773 (Border) visa that, if the applicant is an AusAID recipient or AusAID student the applicant has the support of the AusAID for the grant of the visa. Subclause 773.225(2) provides that the Minister may waive this requirement if waiver is justified by the circumstances of the case.
Item 80 - Schedule 5, clause 5010
This item substitutes a new clause 5010. Clause 5010 applies to:
* persons who hold an AusAID student visa; and
* persons who do not hold a substantive visa and whose last substantive visa was an AusAID student visa.
To meet clause 5010 such persons must either:
* have been studying an AusAID approved course of less than 12 months duration; or
* have ceased studying the AusAID approved course and have been outside Australia for at least two years since so ceasing; or
* the AusAID Minister supports the grant of the visa; or
* the Minister has waived the requirement to obtain the support of the AusAID Minister.
Clause 50 10 has also been amended to remove obsolete references to subsidised courses commenced after 22 August 1979.