Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2002 (NO. 3) 2002 NO. 121

STATUTORY RULES 2002 No. 121

Issued by the Authority of the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2002 (No. 3)

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.

Paragraph 504(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 regulations.

Schedule 1 to the Migration Regulations 1994 sets out the quantum of the visa application charge imposed on applications for specified visa classes. Parts 1, 2 and 5 of the Migration Regulations 1994 impose fees in relation to an application for approval as a business sponsor; a renewal of approval as a pre-qualified business sponsor; the nomination of business activities; employer nomination; and sponsorship.

The purpose of the Regulations is to amend the Migration Regulations 1994 to provide for the indexation of fees and charges for a range of visa applications in line with general price movements and amendments to fees and charges in line with measures announced in 2002-2003 Budget.

The indexation will result in an increase of approximately 4.4% for most charges. The quantum of this increase does not cause the applicable fee limit set out in the Migration (Visa Application) Charge Act 1997 to be exceeded.

Details of the Regulations are set out in the Attachment.

The Regulations commence on 1 July 2002.

ATTACHMENT

Regulation 1 -Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 3).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 1 July 2002.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 as amended by the Migration Amendment Regulations 2002 (No. 2).

Regulation 4 - Transitional

This regulation provides that Schedule 1 to these Regulations applies to an application for a visa made on or after 1 July 2002.

Schedule 1 - Amendments

Item [1] - Schedule 1, paragraph 1104A(2)(b)

This item amends paragraph 1104A(2)(b) so that the second instalment fee for a Business Skills (Residence) (Class BH) visa is the same as the second instalment fee for the corresponding offshore, Business Skills (Migrant) (Class AD), visa. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

That is, where an applicant is 18 years or more at the time of application, is assessed as not having functional English and satisfies the primary criteria for the grant of a subclass included in Business Skills (Residence) (Class BH), the second instalment fee is $4,980.

Where an applicant is 18 years or more at the time of application, is assessed as not having functional English and satisfies the secondary criteria for the grant of a subclass included in Business Skills (Residence) (Class BH), the second instalment fee is $2,485.

Item [2] - Schedule 1, paragraph 1113(2)(b)

This item amends paragraph 1113 (2)(b) so that the second instalment fee is the same as the second instalment fee for certain other offshore visa classes. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

New subparagraph 1113 (2)(b)(i) provides that in the case of each applicant who was 18 years or more at the time of application and is assessed as not having functional English, the second instalment fee is $2,485.

Item [3] - Schedule 1, sub-sub-paragraph 1114(2)(b)(iii)(A)

This item amends sub-subparagraph 1114(2)(b)(iii)(A) to italicise and add the date to the reference to the Immigration (Education) Charge Regulations 1993.

Item [4] - Schedule 1, paragraph 1114A(2)(b)

This item amends paragraph 1114A(2)(b) so that the second instalment fee for an Employer Nomination (Residence) (Class BW) visa is the same as the second instalment fee for the corresponding offshore, Employer Nomination (Migrant) (Class AN), visa. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

New subparagraph 1114A(2)(b)(i) provides that where an applicant is 18 years or more at the time of application, is assessed as not having functional English and satisfies the primary criteria for the grant of a subclass included Employer Nomination (Residence) (Class BW), the second instalment fee is $4,980.

New subparagraph 1114A(2)(b)(ii) provides that where an applicant (including a person taken by paragraph 2.08C(2)(b) to be included in the application) is 18 years or more at the time of application, is assessed as not having functional English and satisfies the secondary criteria for the grant of a subclass included in Employer Nomination (Residence) (Class BW), the second instalment fee is $2,485.

New subparagraph 1114A(2)(b)(iii) provides an exception for applicants who are religious workers and their family unit members.

That is, where the applicant is a religious worker within the meaning of paragraph 5(4)(a) of the Immigration (Education) Charge Regulations 1993 or is a member of the family unit of an applicant who is a religious worker within the meaning of paragraph 5(4)(a) of the Immigration (Education) Charge Regulations 1993, the second instalment fee is Nil.

Item [5] - Schedule 1, paragraph 1115(2)(b)

This item amends paragraph 1115(2)(b) so that the second instalment fee is the same as certain other offshore visa classes. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

New subparagraph 1115(2)(b)(i) provides that where an applicant was 18 years or more at the time of application, is assessed as not having functional English and satisfies the criteria for the grant of a Subclass 832 (Close Ties) visa, the second instalment fee is $2,485.

Applicants who satisfy the criteria for the Subclass 831 (Prospective Marriage Spouse) visa are exempted from paying a second instalment fee. This is part of the general aim to assist migration of "immediate" family members.

Item [6] - Schedule 1, subparagraphs 1121(2)(b)(iii) and (iv)

This item amends subparagraphs 1121(2)(b)(iii) and (iv) so that they are set out more simply. The intention is to achieve more clear and accessible legislation. There is no substantive change intended.

Item [7] - Schedule 1, paragraph 1121A(2)(b)

This item amends paragraph 1121A(2)(b) so that the second instalment fee for Labour Agreement (Residence) (Class BV) visa is the same as the second instalment fee for the corresponding offshore, Labour Agreement (Migrant) (Class AU), visa. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

That is, where an applicant is 18 years or more at the time of application, is assessed as not having functional English and satisfies the primary criteria for the grant of a subclass included in Business Skills (Residence) (Class BH), the second instalment fee is $4,980.

Where an applicant is 18 years or more at the time of application, is assessed as not having functional English and satisfies the secondary criteria for the grant of a subclass included in Business Skills (Residence) (Class BH), the second instalment fee is $2,485.

New subparagraphs 1121A(2)(b)(iii) and 1121A(2)(b)(iv) provide an exception for applicants who are religious workers and their family unit members.

That is, where the applicant is a religious worker who seeks to, or does, work in accordance with a labour agreement entered into by a religious institution and who satisfies the primary criteria for the grant of a visa of a subclass included in Labour Agreement (Residence)(Class BV), the second instalment fee is Nil.

Where the applicant is a member of the family unit of a religious worker and he or she satisfies the secondary criteria for the grant of a visa of a subclass included in Labour Agreement (Residence) (Class BV), the second instalment fee is Nil.

Item [8] - Schedule 1, paragraphs 1128BA(2)(b), 1128CA(2)(b) and 1128D(2)(b)

This item amends paragraphs 1128BA(2)(b), 1128CA(2)(b) and 1128D(2)(b) so that the second instalment fee is the same as the second instalment fee for certain other offshore visa classes. This ensures there is fairness and consistency between fees paid by offshore visa applicants and onshore visa applicants.

New subparagraphs 1128BA(2)(b)(i), 1128CA(2)(b)(i) and 1128D(2)(b)(i) provide that in the case of each applicant who was 18 years or more at the time of application and is assessed as not having functional English, the second instalment fee is $2,485.

Item [9] - Additional amendments

This item sets out a table which amends Parts 1, 2, and 5 and Schedule 1 of the Migration Regulations 1994 to provide for the annual indexation of specified fees.

This item also amends subparagraphs 1128AA(2)(b)(i), 1128B(2)(a)(ii) and 1128C(2)(a)(ii), 1128(2)(a)(i), 1128(2)(a)(ii) and paragraph 1216(2)(a) to provide for fee increases other than by the method of annual indexation.

Subparagraphs 1128AA(2)(b)(i), 1128B(2)(a)(ii) and 1128C(2)(a)(ii) relate to points tested skilled migration applications.

All points tested skilled migration applications worldwide are now processed in the Adelaide Skilled Processing Centre of the Department. As there is no longer any difference in the processing costs or arrangements between onshore and offshore applicants, the realignment of fees will bring offshore application charges to the same level as onshore application charges. This realignment ensures that all applicants are treated equally when applying for points tested skilled migration.

Subparagraphs 1128(2)(a)(i), 1128(2)(a)(ii) and paragraph 1216(2)(a) relate to Resident Return (Temporary) (Class TV) and Return (Residence) (Class BB) visas.

The Government is encouraging eligible permanent residents to apply for Australian Citizenship by aligning the Resident Return (Temporary) (Class TV) and Return (Residence) (Class BB) visa application charge with the application fee for Australian Citizenship.

Resident Return (Temporary) (Class TV) and Return (Residence) (Class BB) visas are generally issued to non-citizens to allow them to lawfully re-enter Australia following overseas travel. In the past, the Resident Return (Temporary) (Class TV) and Return (Residence) (Class BB) visas have been seen by some travellers as a cheaper alternative to applying for citizenship and travelling on an Australian passport.

This measure is in line with the recommendations of the Australian Citizenship Council to actively encourage permanent residents to become full members of Australian society, through citizenship.