MIGRATION AMENDMENT REGULATIONS 2002 (NO. 7) 2002 NO. 299

Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MIGRATION AMENDMENT REGULATIONS 2002 (NO. 7) 2002 NO. 299

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 299

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2002 (No. 7)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed 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 powers listed in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Migration Regulations) to change the requirements for making valid visa applications for certain visa classes, amend the criteria for the grant of permanent partner visas, and make amendments in relation to border security, fees imposed on business sponsors and applications for temporary Dependent Child visas.

The Regulations effect changes to the Migration Regulations to:

• improve Australia's border control by amending the requirements for proof of identity for persons travelling on overseas vessels within Australia (items [2101] and [2102] refer);

• remove the nomination fee imposed on pre-qualified business sponsors located in regional areas (items [1101] and [1102] refer);

• clarify that a dependent child cannot be added to a Resolution of Status visa application after the main applicant on that application has been refused the visa (item [1103] refers);

• enable an application for a temporary Dependent Child visa to act also as an application for a Bridging Visa A, C or E where the applicant is applying in Australia (items [1202] to [1204] refer); and

• ensure that persons granted temporary partner or Dependent Child visas the basis of ministerial intervention are eligible for the grant of a permanent partner visa, and enable persons granted temporary partner visas offshore on the basis of ministerial intervention to apply for the equivalent permanent partner visa in Australia (items [1104], [1201], [1301] to [1347] refer).

Details of the Regulations are set out in Attachment B.

The amendments made by items [1331] and [1343] of the Regulations have a retrospective effect in certain cases. These items amend the time of application, secondary criteria for certain partner visa subclasses, by allowing an applicant who is the holder of a Subclass 820 (Spouse) visa, or a Subclass 826 (Interdependency) visa, granted on the basis of ministerial intervention, and who is a member of the family unit of a person who holds a Subclass 820 or 826 visa and has applied for a Partner (Residence) ;Class BS) visa, to meet the criteria for the grant of the visa. These amendments apply to applications made, but not finally determined, before 9 December 2002, as well as to applications made after that date.

These changes do not infringe subsection 48(2) of the Acts Interpretation Act 1901 as the changes are beneficial in nature, and do not affect the rights of any person so as to disadvantage that person. Nor do they impose liabilities on any person in respect of anything done or omitted to be done before the date of notification.

The Regulations commence on 9 December 2002 (regulations 1 to 4 and Schedule 1) and 5 January 2003 (Schedule 2). These dates enable the necessary policy and operational procedures to be in place prior to the commencement of the Regulations.

ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the GovernorGeneral may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

• subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class;

• subsection 46(1) of the Act provides, in part, that an application for a visa is valid if it is for a visa of a class specified in the application, and it satisfies the criteria and requirements prescribed under section 46 of the Act;

• subsection 46(2) of the Act provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations the application is taken to have been validly made;

• subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application;

• subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made;

• paragraph 170(a) of the Act provides for prescribing the evidence of identity which a clearance officer may require a person travelling on an overseas vessel within Australia to show;

• paragraph 170(b) of the Act provides that a clearance officer may require a person travelling on an overseas vessel within Australia to give the officer any information required to be given under the Act or regulations;

• subparagraph 504(1)(a)(i) of the Act provides that the regulations may make provision for and in relation to the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; and

• paragraph 504(1)(c) of the Act provides that the Governor-General may make regulations making provision for, or in relation to, the furnishing or obtaining of information with respect to:

- persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and

- persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and

- persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier.

ATTACHMENT B

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2002 (No. 7).

Regulation 2 - Commencement

This regulation provides that regulations 1 to 4 and Schedule to these Regulations commence on 9 December 2002, and Schedule 2 to these Regulations commences on 5 January 2003.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedules 1 and 2 amend the Migration Regulations 1994 (the Migration Regulations).

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendment made by item [1103] applies in relation to a request to have a dependent child added to an application for a Resolution of Status (Temporary) (Class UH) visa, where the request is made on or after 9 December 2002.

Subregulation 4(2) provides that the amendments made by items [1301] to [1347] apply in relation to an application for a visa:

• made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)), before 9 December 2002; or

• made on or after 9 December 2002.

The amendments made by items [1331] and [1343] to these Regulations are retrospective because they affect time of application criteria. The retrospectivity in relation to these items is beneficial because it enables persons granted temporary partner visas on the basis of ministerial intervention to meet the criteria for the grant of a permanent partner visa. These amendments are therefore not prejudicial to any person, and do not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Schedule 1 - Amendments commencing on 9 December 2002

Part 1 - Amendments of Parts l and 2

[1101] - Subregulation 1.20GA(2)

This item makes a technical amendment to subregulation 1.20GA(2) consequential to the following item.

[1102] - Subregulation 1.20GA(4)

This item substitutes subregulation 1.20GA(4) with a provision requiring a standard business sponsor to accompany any nomination made under subregulation 1.20GA(1) with a fee of $235.

Prior to this amendment subregulation 1.20GA(4) imposed the nomination fee on both pre-qualified business sponsors and standard business sponsors.

Regulation 1.20GA was inserted into the Migration Regulations by item 1104 of the Migration Amendment Regulations 2002 (No. 5), and commenced on 1 November 2002.

At the time regulation 1.20GA was inserted into the Migration Regulations, it was not intended to extend the nomination fee requirement to pre-qualified business sponsors.

This item ensures that a pre-qualified business sponsor is not required to accompany a nomination made under regulation 1.20GA with a fee of $235.

[1103] - Subparagraraph 2.08B(1)(ba)(ii)

This item inserts new sub-subparagraphs 2.08B(1)(ba)(ii)(A) and (B) to clarify that a dependent child may only be added to a Resolution of Status visa application before that application has been decided, or after the main applicant has been granted a Resolution of Status visa.

The amendment clarifies that a dependent child cannot be added to a Resolution of Status visa application if the main applicant has been refused the Resolution of Status visa.

[1104] - After regulation 2.08F

This item inserts new regulation 2.08G in the Migration Regulations.

New regulation 2.08G provides that certain persons are taken to have made a valid application for a Partner (Migrant) (Class BC) visa, on and after 9 December 2002 (the commencement date of these ministerial intervention amendments). This regulation applies where:

• a person held, before 9 December 2002, either a Subclass 309 (Spouse (Provisional)) visa or a Subclass 310 (Interdependency (Provisional)) visa which the Minister granted exercising his intervention powers under the Act; and

• the person lodged form 47SP in Australia, after the Minister made the decision to grant the visa exercising his intervention powers and before 9 December 2002. Form 47SP is the approved form for making a Partner (Migrant) (Class BC) application, where the applicant does not hold a Subclass 445 (Dependent Child) visa; and

• the first instalment of the visa application charge was paid before 9 December 2002.

New regulation 2.086 applies in addition to regulation 2.08E (Certain applicants taken to have applied for Partner (Migrant) (Class BC) visas and Partner (Provisional) (Class UF) visas).

The purpose of new regulation 2.086 is to address the situation where the holder of a Subclass 309 or 310 visa, granted on the basis of ministerial intervention, comes to Australia and then seeks to apply for permanent residence in Australia. These amendments ensure that such persons are taken to have made a valid application for permanent residence, even where the applicant did not meet the Schedule 1 criteria relating to the location of the applicant at time of application and requirements as to where the application must be made.

Part 2 - Amendments of Schedule 1

[1201] - Paragraphs 1129(3)(a), (b), (c) and (d)

This item omits paragraphs 1129(3)(a), (b), (c) and (d) of Schedule 1 to the Migration Regulations, and substitutes new paragraphs 1129(3)(a), (b), (c) and (d).

Item 1129 of Schedule 1 contains the criteria for making a valid application for a Partner (Migrant) (Class BC) visa. Class BC contains visa subclasses 100 (Spouse) and 110 (Interdependency) - both of which are permanent partner visas.

The amendments made by this item ensure that an application for a Class BC visa by the holder of either a Subclass 309 (Spouse (Provisional)) visa or a Subclass 310 (Interdependency (Provisional)) visa granted on the basis of the Minister exercising his intervention powers, may be made in Australia, but not in immigration clearance, as well as outside Australia.

In addition, these applicants may be in or outside Australia, but not in immigration clearance, at the time of making a Class BC visa application. This means that a Subclass 309 or 310 visa holder who is in Australia on the basis of ministerial intervention will not need to leave Australia to make a valid application for permanent residence.

[1202] - Subitem 1301(1)

Item 1301 of Schedule 1 to the Migration Regulations contains the criteria for making a valid visa application for a Bridging A (Class WA) visa.

This item amends subitem 1301(1) by inserting a reference to form 918. The effect of this amendment is that an application made on form 918 in Australia for a Subclass 445 (Dependent Child) visa is also an application for a Bridging A (Class WA) visa.

[1203] - Subitem 1303(1)

Item 1303 of Schedule 1 to the Migration Regulations contains the criteria for making a valid visa application for a Bridging C (Class WC) visa.

This item amends subitem 1303(1) by inserting a reference to form 918. The effect of this amendments is that an application made on form 918 in Australia for a Subclass 445 (Dependent Child ) visa is also an application for a Bridging C (Class WC) visa.

[1204] - Subitem 1305(1)

Item 1305 of Schedule 1 to the Migration Regulations contains the criteria for making a valid visa application for a Bridging E (Class WE) visa.

This item amends subitem 1305(1) by inserting a reference to form 918. The effect of this amendment is that an application made on form 918 in Australia for a Subclass 445 (Dependent Child ) visa is also an application for a Bridging E (Class WE) visa.

Part 3 - Amendments of Schedule 2

[1301] - Division 100.1

This item omits the interpretation provision in Division 100.1 and substitutes new Division 100.1.

New clause 100.111 provides for the definition of sponsoring spouse to include the Australian citizen, Australian permanent resident or eligible New Zealand citizen spouse of a person who holds a Subclass 309 (Spouse (Provisional)) visa granted on the basis of ministerial intervention. The sponsoring spouse must have been the spouse of the Subclass 309 visa holder at the time the provisional Spouse visa was granted.

The purpose of this amendment is to enable an applicant who was granted a provisional Subclass 309 visa on the basis of the Minister's intervention powers, to meet the primary criteria at time of decision for a permanent Subclass 100 (Spouse) visa.

While there is no requirement for the spouse of a Subclass 309 visa holder granted on the basis of ministerial intervention to sponsor the applicant for permanent residence, the spouse is dealt with, as far as practicable, as if the spouse were a sponsoring spouse.

The intervention powers covered by these amendments are those contained in sections 351, 391, 417, 454, 501J and repealed section 345 of the Act.

Section 345 of the Act was repealed by Act No. 113 of 1998 (Schedule 1 of the Migration Legislation Amendment Act (No. 1) 1998 refers). However, these amendments include section 345, as there is still the possibility that a person could be applying for permanent residence where his or her temporary partner visa was granted on the basis of the Minister exercising his power in section 345 (while that section was still in force).

Sections 345, 351, 391, 417, 454 and 501J of the Act give the Minister discretionary powers to substitute, for a decision of a review tribunal or officer, a decision that is more favourable to the visa applicant, if the Minister considers that it is in the public interest to do so.

Under these sections, if the Minister chooses to substitute a more favourable decision by granting a visa, the Minister may grant the applicant a visa of any subclass. This is the case regardless of whether the applicant applied for that subclass of visa, and regardless of whether the applicant met the Schedule 1 or Schedule 2 requirements for the grant of the visa (for example, subsection 351(2) of the Act, which states that the Minister is not bound by some provisions of the Act and Migration Regulations relating to visa criteria, refers).

Where the Minister exercises his public interest powers under the sections referred to above, he may grant the applicant a temporary partner visa, despite the applicant never having applied for that class of visa. In particular, this is the case where the applicant is in a spousal or interdependent relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen.

This item also amends the note in Division 100.1 to include a reference to Australian permanent resident, eligible New Zealand citizen and spouse.

Item [1302] - Subclause 100.221(1)

This item inserts a reference to new subclause 100.221(2A) in subclause 100.221(1) so that an applicant satisfies the criteria in clause 100.221 if the applicant meets the requirements of subclause 100.221(2), (2A), (3), (4) or (4A).

This amendment is consequential to amendments made by these Regulations enabling a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet the criteria for the grant of a permanent Spouse visa.

Item [1303] -After subclause 100.221(2)

This item inserts new subclause 100.221(2A) in Part 100 of Schedule 2 to the Migration Regulations.

The amendments made by this item enable a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet clause 100.221 for the grant of a permanent Subclass 100 (Spouse) visa.

New subclause 100.221(2A) requires:

• the applicant to have been granted, and hold, a provisional Spouse visa because of ministerial intervention;

• the applicant to be the spouse of the sponsoring spouse; and

• unless certain exceptions apply, for at least two years to have passed since the Minister intervened to grant the provisional Spouse visa.

Item [1304] - Paragraph 100.221(3)(b)

This item inserts a reference to new subclause 100.221(2A) in paragraph 100.221(3)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet the requirements in subclause 100.221(3).

Item [1305] -Paragraph 100.221(4)(b)

This item inserts a reference to new subclause 100.221(2A) in paragraph 100.221(4)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet the requirements in subclause 100.221(4).

Item [1306] - Subclause 100.221(5)

This item inserts a reference to new paragraph 100.221(2A)(c) in subclause 100.221(5) of the Migration Regulations.

This amendment enables a person who was granted a provisional Spouse visa on the basis of ministerial intervention, to be granted a permanent Subclass 100 (Spouse) visa less than 2 years after the Minister intervened to grant the provisional Spouse visa if the person was in a long-term relationship with the sponsoring spouse at the time of making the Subclass 100 visa application.

This is an exception to the requirement in new subclause 100.221(2A) that, in order for permanent residence to be granted, at least two years must have passed since the Minister intervened to grant the provisional Spouse visa.

Item [1307] - Subclause 100.221(6)

This item inserts a reference to new paragraph 100.221(2A)(c) in subclause 100.221(6) of the Migration Regulations.

• that person's sponsoring spouse holds, or held, a permanent humanitarian visa; and

• Immigration was informed that they were in a spousal relationship before the humanitarian visa was granted.

Item [1308] - Subclause 100.221(7)

This item inserts a reference to new paragraph 100.221(2A)(c) in subclause 100.221(7) of the Migration Regulations.

This amendment provides that nothing in new paragraph 100.221(2A)(c) prevents the Minister, less than 2 years after the application for permanent residence is made, from refusing to grant a Subclass 100 (Spouse) visa, or granting a Subclass 100 visa to an applicant who meets the death or cessation of relationship provisions in subclause 100.221(3) or (4).

Item [1309] - Clause 100.226

This item omits clause 100.226 and substitutes new clause 100.226 in the Migration Regulations.

The amendments made by this item ensure that an applicant who meets the requirements of new subclause 100.221(2A), or subclauses 100.221(3) or (4), will not need to be nominated by the sponsoring spouse for the grant of a Subclass 100 (Spouse) visa if at least 2 years have passed since the application for permanent residence was made.

Item [1310] - Paragraph 100.321(c)

This item amends paragraph 100.321(c). The amendment is consequential to other amendments made by these Regulations to clause 100.321.

Item [1311] -After paragraph 100.321(c)

This item inserts new paragraph 100.321(d) in clause 100.321 of the Migration Regulations.

This item provides that an applicant can meet the time of decision secondary criteria if he or she is:

• the holder of a Subclass 445 (Dependent Child) visa or a Subclass 309 (Spouse (Provisional)) visa granted on the basis of ministerial intervention; and

• the dependent child, or a member of the family unit, of another person who was the holder of a Subclass 445 or 309 visa, and that other person has been granted a Subclass 100 (Spouse) visa.

The purpose of these amendments is to ensure that a person seeking to meet the secondary criteria for a Subclass 100 visa, and who was granted a provisional Spouse visa or a Dependent Child visa on the basis of ministerial intervention, will subsequently be eligible for the grant of permanent residence by meeting the secondary time of decision criteria for the Subclass 100 visa.

Item [1312] - Division 110.1

This item omits the interpretation provision in Division 110.1 and substitutes new Division 110.1.

New clause 110.111 provides for the definition of sponsor to include the Australian citizen, Australian permanent resident or eligible New Zealand citizen interdependent partner of a person who holds a Subclass 310 (Interdependency (Provisional)) visa granted on the basis of ministerial intervention. The sponsor must have been the interdependent partner of the Subclass 310 visa holder at the time the provisional Interdependency visa was granted.

The purpose of this amendment is to enable an applicant who was granted a provisional Subclass 310 visa on the basis of the Minister's intervention powers, to meet the primary criteria at time of decision for a permanent Subclass 110 (Interdependency) visa.

While there is no requirement for the interdependent partner of a Subclass 310 visa holder granted on the basis of ministerial intervention to sponsor the applicant for permanent residence, the interdependent partner is dealt with, as far as practicable, as if he or she were a sponsor.

The intervention powers covered by these amendments are those contained in sections 351, 391, 417, 454, 501J and repealed section 345 of the Act.

Section 345 of the Act was repealed by Act No. 113 of 1998 (Schedule 1 of the Migration Legislation Amendment Act (No. 1) 1998 refers). However, these amendments include section 345, as there is still the possibility that a person could be applying for permanent residence where his or her temporary partner visa was granted on the basis of the Minister exercising his power in section 345 (while that section was still in force).

This item also amends the note in Division 110.1 to include a reference to Australian permanent resident and eligible New Zealand citizen.

Item [1313] - Subclause 110.221(1)

This item inserts a reference to new subclause 110.221(2A) in subclause 110.221(1) so that an applicant satisfies the criteria in clause 110.221 if the applicant meets the requirements of subclause 110.221(2), (2A), (3), (4) or (4A).

This amendment is consequential to the amendments made by these Regulations that enable a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the criteria for the grant of a permanent Interdependency visa.

Item [1314] - After subclause 110.221(2)

This item inserts new subclause 110.221(2A) in Part 110 of Schedule 2 to the Migration Regulations.

The amendments made by this item enable a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet clause 110.221 for the grant of a permanent Subclass 110 (Interdependency) visa.

New subclause 110.221(2A) requires:

• the applicant to have been granted, and hold, a provisional Interdependency visa because of ministerial intervention;

• the applicant to be in an interdependent relationship with the sponsor; and

• unless certain exceptions apply, for at least two years to have passed since the Minister intervened to grant the provisional Interdependency visa.

Item [1315] - Paragraph 110.221(3)(b)

This item inserts a reference to new subclause 110.221(2A) in paragraph 110.221(3)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the requirements in subclause 110.221(3).

Item [1316] - Paragraph 110.221(4)(b)

This item inserts a reference to new subclause 110.221(2A) in paragraph 110.221(4)(b) of the Migration Regulations.

This is a consequential amendment enabling enable a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the requirements in subclause 110.221(4).

Item [1317] - Subclause 110.221(5)

This item inserts a reference to new paragraph 110.221(2A)(c) in subclause 110.221(5) of the Migration Regulations.

This amendment enables a person who was granted a provisional Interdependency visa on the basis of ministerial intervention, to be granted a permanent Subclass 110 (Interdependency) visa less than 2 years after the Minister intervened to grant the provisional Interdependency visa if the person was in a long-term relationship with the sponsor at the time of making the Subclass 110 visa application.

This is an exception to the requirement in new subclause 110.221(2A) that, in order for permanent residence to be granted, at least two years must have passed since the Minister intervened to grant the provisional Interdependency visa.

Item [1318] - Subclause 110.221(6)

This item inserts a reference to new paragraph 110.221(2A)(c) in subclause 110.221(6) of the Migration Regulations.

This amendment provides that nothing in new paragraph 110.221(2A)(c) prevents the Minister, less than 2 years after the application for permanent residence is made, from refusing to grant a Subclass 110 (Interdependency) visa, or granting a Subclass 110 visa to an applicant who meets the death or cessation of relationship provisions in subclause 110.221(3) or (4).

Item [1319] - Clause 110.226

This item omits clause 110.226 and substitutes new clause 110.226 in the Migration Regulations.

The amendments made by this item ensure that an applicant who meets the requirements of new subclause 110.221(2A), or subclauses 110.221(3) or (4), will not need to be nominated by the sponsor for the grant of a Subclass 110 (Interdependency) visa if at least 2 years have passed since the application for permanent residence was made.

Item [1320] - Paragraph 110.321(c)

This item amends paragraph 110.321(c). The amendment is consequential to other amendments made by these Regulations to clause 110.321.

Item [1321] - After paragraph 110.321(c)

This item inserts new paragraph 110.321 (d) in clause 110.321 of the Migration Regulations.

This item provides that an applicant can meet the time of decision secondary criteria if he or she is:

• the holder of a Subclass 445 (Dependent Child) visa or a Subclass 310 (Interdependency (Provisional)) visa granted on the basis of ministerial intervention; and

• the dependent child, or a member of the family unit, of another person who was the holder of a Subclass 445 or 310 visa, and that other person has been granted a Subclass 110 (Interdependency) visa.

The purpose of these amendments is to ensure that a person seeking to meet the secondary criteria for a Subclass 110 visa, and who was granted a provisional Interdependency visa or a Dependent Child visa on the basis of ministerial intervention, will subsequently be eligible for the grant of permanent residence by meeting the secondary time of decision criteria for the Subclass 110 visa.

Item [1322] - Clause 801.111, definition of sponsoring mouse

This item omits the definition of sponsoring spouse in clause 801.111 and substitutes a new definition of sponsoring spouse.

The new definition of sponsoring spouse includes the Australian citizen, Australian permanent resident or eligible New Zealand citizen spouse of a person who holds a Subclass 820 (Spouse) visa granted on the basis of ministerial intervention. The sponsoring spouse must have been the spouse of the Subclass 820 visa holder at the time the provisional Spouse visa was granted.

The purpose of this amendment is to enable an applicant who was granted a provisional Subclass 820 visa on the basis of the Minister's intervention powers, to meet the primary criteria at time of decision for a permanent Subclass 801 (Spouse) visa.

While there is no requirement for the spouse of a Subclass 820 visa holder granted on the basis of ministerial intervention to sponsor the applicant for permanent residence, the spouse is dealt with, as far as practicable, as if the spouse were a sponsoring spouse.

The intervention powers covered by these amendments are those contained in sections 351, 391, 417, 454, 501J and repealed section 345 of the Act.

Item [1323] - Clause 801.111, note

This item amends the note in Clause 801.111 to include a reference to Australian permanent resident, eligible New Zealand citizen and spouse.

Item [1324] - Subclause 801.221(1)

This item inserts a reference to new subclause 801.221(2A) in subclause 801.221(1) so that an applicant satisfies the criteria in clause 801.221 if the applicant meets the requirements of subclause 801.221(2), (2A), (3), (4), (5), (6) or (8).

Item [1325] - After subclause 801.221(2)

This item inserts new subclause 801.221(2A) in Part 801 of Schedule 2 to the Migration Regulations.

The amendments made by this item enable a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet clause 801.221 for the grant of a permanent Subclass 801 (Spouse) visa.

New subclause 801.221(2A) requires:

• the applicant to have been granted, and hold, a provisional Spouse visa because of ministerial intervention;

• the applicant to be the spouse of the sponsoring spouse; and

• unless certain exceptions apply, for at least two years to have passed since the Minister intervened to grant the provisional Spouse visa.

Item [1326] - Paragraph 801.221(5)(b)

This item inserts a reference to new subclause 801.221(2A) in paragraph 801.221(5)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet the requirements in subclause 801.221(5).

Item [1327] - Paragraph 801.221(6)(b)

This item inserts a reference to new subclause 801.221(2A) in paragraph 801.221(6)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Spouse visa on the basis of ministerial intervention to meet the requirements in subclause 801.221(6).

Item [1328] - Subclause 801.221(6A)

This item inserts a reference to new paragraph 801.221(2A)(c) in subclause 801.221(6A) of the Migration Regulations.

This amendment enables a person who was granted a provisional Spouse visa on the basis of ministerial intervention, to be granted a permanent Subclass 801 (Spouse) visa less than 2 years after the Minister intervened to grant the provisional Spouse visa if the person was in a long-term relationship with the sponsoring spouse at the time of making the Subclass 801 visa application.

This is an exception to the requirement in new subclause 801.221(2A) that, in order for permanent residence to be granted, at least two years must have passed since the Minister intervened to grant the provisional Spouse visa.

Item [1329] - Subclause 801.221(7)

This item inserts a reference to new paragraph 801.221(2A)(c) in subclause 801.221(7) of the Migration Regulations.

This amendment provides that nothing in new paragraph 801.221(2A)(c) prevents the Minister, less than 2 years after the application for permanent residence is made, from refusing to grant a Subclass 801 (Spouse) visa, or, among other possibilities, from granting a Subclass 801 visa to an applicant who meets the death or cessation of relationship provisions in subclause 801.221(5) or (6).

Item [1330] - Subclause 801.224(3)

This is a technical amendment to correct a typographical error in subclause 801.224(3).

Item [1331] - Subdivision 801.31

This item omits Subdivision 801.31 and inserts new Subdivision 801.31, which sets out the secondary criteria to be satisfied at time of application.

New clause 801.311 enables an additional type of applicant to meet the secondary criteria at time of application, being an applicant who:

• was granted, and holds, a Subclass 820 (Spouse) visa on the basis of ministerial intervention; and

• is a member of the family unit of a person who holds a Subclass 820 visa, and who has applied for a Partner (Residence) (Class BS) visa.

Members of the family unit cannot generally be granted a Subclass 801 (Spouse) visa unless they are a dependent child of a person who has applied for a Class BS visa, or a member of the family unit of a person who holds, or held, a prospective marriage (temporary) visa, and that person has applied for a Class BS visa. New clause 801.311 creates an exception to this general rule, to allow members of the family unit who were granted a Subclass 820 visa through ministerial intervention to be granted a Subclass 801 visa.

New clause 801.311 will have a retrospective effect in certain cases because it amends the time of application secondary criteria for visa Subclass 801. This clause applies to applications made, but not finally determined, before 9 December 2002, as well as to applications made after that date.

The retrospectivity in relation to new clause 801.311 is beneficial because it enables persons granted temporary partner visas on the basis of ministerial intervention to meet the criteria for the grant of a permanent partner visa. These amendments are therefore not prejudicial to any person, and do not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Item [1332] - Paragraph 801.321(a)

Item [1333] - Subparagraph 801.321(a)(i)

Item [1334] - Subparagraph 801.321(a)(ii)

These items amend paragraph 801.321(a), and subparagraphs 801.321(a)(i) and (ii). These amendments are consequential to other amendments made by these Regulations to clause 801.321.

Item [1335] - After subparagraph 801.321(a)(ii)

This item inserts new subparagraph 801.321(a)(iii) in clause 801.321 of the Migration Regulations.

This item provides that an applicant can meet the time of decision secondary criteria if he or she is:

• the holder of a Subclass 445 (Dependent Child) visa or a Subclass 820 (Spouse (Provisional)) visa granted on the basis of ministerial intervention; and

• the dependent child, or a member of the family unit, of another person who was the holder of a Subclass 445 or 820 visa.

The purpose of these amendments is to ensure that a person seeking to meet the secondary criteria for a Subclass 801 visa, and who was granted a provisional Spouse visa or a Dependent Child visa on the basis of ministerial intervention, will subsequently be eligible for the grant of permanent residence by meeting the secondary time of decision criteria for the Subclass 801 visa.

Item [1336] - Division 814.1

This item omits the interpretation provision in Division 814.1 and substitutes new Division 814.1.

New clause 814.111 provides for the definition of sponsor to include the Australian citizen, Australian permanent resident or eligible New Zealand citizen interdependent partner of a person who holds a Subclass 826 (Interdependency) visa granted on the basis of ministerial intervention. The sponsor must have been the interdependent partner of the Subclass 826 visa holder at the time the provisional Interdependency visa was granted.

The purpose of this amendment is to enable an applicant who was granted a provisional Subclass 826 visa on the basis of the Minister's intervention powers, to meet the primary criteria at time of decision for a permanent Subclass 814 (Interdependency) visa.

While there is no requirement for the interdependent partner of a Subclass 826 visa holder granted on the basis of ministerial intervention to sponsor the applicant for permanent residence, the interdependent partner is dealt with, as far as practicable, as if he or she were a sponsor.

The intervention powers covered by these amendments are those contained in sections 351, 391, 417, 454, 501J and repealed section 345 of the Act.

This item also amends the note in Division 814.1 to include a reference to Australian permanent resident.

Item [1337] - Subclause 814.221(1)

This item inserts a reference to new subclause 814.221(3A) in subclause 814.221(1) so that an applicant satisfies the criteria in clause 814.221 if the applicant meets the requirements of subclause 814.221(2), (3), (3A), (4), (5), (7) or (8).

This amendment is consequential to amendments made by these Regulations enabling a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the criteria for the grant of a permanent Interdependency visa.

Item [1338] - After subclause 814.221(3)

This item inserts new subclause 814.221(3A) in Part 814 of Schedule 2 to the Migration Regulations.

The amendments made by this item enable a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet clause 814.221 for the grant of a permanent Subclass 814 (Interdependency) visa.

New subclause 814.221(3A) requires:

• the applicant to have been granted, and hold, a provisional Interdependency visa because of ministerial intervention;

• the applicant to be in an interdependent relationship with the sponsor; and

• unless certain exceptions apply, for at least two years to have passed since the Minister intervened to grant the provisional Interdependency visa.

Item [1339] - Paragraph 814.221(5)(b)

This item inserts a reference to new subclause 814.221(3A) in paragraph 814.221(5)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the requirements in subclause 814.221(5).

Item [1340] - Subclause 814.221(5A)

This item inserts a reference to new paragraph 814.221(3A)(c) in subclause 814.221(5A) of the Migration Regulations.

This amendment enables a person who was granted a provisional Interdependency visa on the basis of ministerial intervention, to be granted a permanent Subclass 814 (Interdependency) visa less than 2 years after the Minister intervened to grant the provisional Interdependency visa if the person was in a long-term relationship with the sponsor at the time of making the Subclass 814 visa application.

Item [1341] - Subclause 814.221(6)

This item inserts a reference to new paragraph 814.221(3A)(c) in subclause 814.221(6) of the Migration Regulations.

This amendment provides that nothing in new paragraph 814.221(3A)(c) prevents the Minister, less than 2 years after the application for permanent residence is made, from refusing to grant a Subclass 814 (Interdependency) visa, or granting a Subclass 814 visa to an applicant who meets the death or cessation of relationship provisions in subclause 814.221(5) or (8).

This is an exception to the requirement in new subclause 814.221(3A) that, in order for permanent residence to be granted, at least two years must have passed since the Minister intervened to grant the provisional Interdependency visa.

Item [1342] - Paragraph 814.221(8)(b)

This item inserts a reference to new subclause 814.221(3A) in paragraph 814.221(8)(b) of the Migration Regulations.

This is a consequential amendment enabling a person who was granted a provisional Interdependency visa on the basis of ministerial intervention to meet the requirements in subclause 814.221(8).

Item [1343] - Subdivision 814.31

This item omits Subdivision 814.31 and inserts new Subdivision 814.31, which sets out the secondary criteria to be satisfied at time of application.

New clause 814.311 enables an additional type of applicant to meet the secondary criteria at time of application, being an applicant who:

• was granted, and holds, a Subclass 826 (Interdependency) visa on the basis of ministerial intervention; and

• is a member of the family unit of a person who holds a Subclass 826 visa, and who has applied for a Partner (Residence) (Class BS) visa.

Members of the family unit cannot generally be granted a Subclass 814 (Interdependency) visa unless they are a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa. New clause 814.311 creates an exception to this general rule, to allow members of the family unit who were granted a Subclass 826 visa through ministerial intervention to be granted a Subclass 814 visa.

New clause 814.311 will have a retrospective effect in certain cases because it amends the time of application secondary criteria for visa Subclass 814. This clause applies to applications made, but not finally determined, before 9 December 2002, as well as to applications made after that date.

The retrospectivity in relation to new clause 814.311 is beneficial because it enables persons granted temporary partner visas on the basis of ministerial intervention to meet the criteria for the grant of a permanent partner visa. These amendments are therefore not prejudicial to any person, and do not contravene subsection 48(2) of the Acts Interpretation Act 1901.

Item [1344] - Paragraph 814.321 (a)

Item [1345] - Subparagraph 814.321(a)(i)

Item [1346] - Subparagraph 814.321(a)(ii)

These items amend paragraph 814.321(a), and subparagraphs 814.321(a)(i) and (ii). These amendments are consequential to other amendments made by these Regulations to clause 814.321.

Item [1347] - After subparagraph 814.321(a)(ii)

This item inserts new subparagraph 814.321(a)(iii) in clause 814.321 of the Migration Regulations.

This item provides that an applicant can meet the time of decision secondary criteria if he or she is:

• the holder of a Subclass 445 (Dependent Child) visa or a Subclass 826 (Interdependency) visa granted on the basis of ministerial intervention; and

• the dependent child, or a member of the family unit, of another person who was the holder of a Subclass 445 or 826 visa.

The purpose of these amendments is to ensure that a person seeking to meet the secondary criteria for a Subclass 814 visa, and who was granted a provisional Interdependency visa or a Dependent Child visa on the basis of ministerial intervention, will subsequently be eligible for the grant of permanent residence by meeting the secondary time of decision criteria for the Subclass 814 visa.

Schedule 2 - Amendments commencing on 5 January 2003

[2101] - Subregulations 3.09(2) and (3)

This item omits subregulations 3.09(2) and (3), substitutes new subregulations 3.09(2) and (3), and inserts new subregulation 3.09(2A) in the Migration Regulations.

Under section 170 of the Act, persons travelling on an overseas vessel (ie. both aircraft and ships on international voyages) from one port to another within Australia may be required by a clearance officer to show prescribed evidence of their identity, and give the officer any information required by the Act or Migration Regulations.

Regulation 3.09 prescribes acceptable evidence of identity for persons travelling on an overseas vessel within Australia. This provision applies to both passengers and crew travelling on domestic sectors of international flights or cruises.

The intention of this amendment is to require all persons who travel, or who intend to travel, on an overseas vessel within Australia to produce a document that is in force and that contains a photograph and full name of the bearer. The document produced must be one of the following kinds of document:

• a passport issued to the person in the form in which it was issued;

• a licence to drive a motor vehicle issued under a law of the Commonwealth, or of a State or Territory;

• a document issued by the Commonwealth or a State or Territory, or by an authority of the Commonwealth or a State or Territory, that identifies the person; or

• where the overseas vessel is an aircraft - an aviation security identity card issued by the operator of the aircraft or the operator of an airport in Australia.

It is intended that documents of identification containing only the signature of the bearer will not be sufficient evidence of identity.

[1202] - Paragraph 3.09(5)(a)

This item substitutes paragraph 3.09(5)(a) of the Migration Regulations.

Subregulation 3.09(5) enables officers to require the full name of an accompanied minor to be written on a boarding pass, where the minor cannot produce a document of identification.

Where a minor travels with an adult, and both boarding passes are produced or shown to the port officer, the accompanying adult's boarding pass must be endorsed with the minor's full name if documents of identification cannot be produced for the minor.

New paragraph 3.09(5)(a) increases the age of accompanied minors whose full name may be required to be written on a boarding pass, from 16 years to 18 years. This affects accompanied minors over the age of 16 years who are not able to produce the required evidence of identity.