Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 21

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 21

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2004 (No. 1)

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 provisions listed in Attachment A.

The purpose of Schedules 1 to 4 to the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to: provide that no visa application charge is payable by certain applicants for Foreign Government Agency visas; amend the visa application requirements for Medical Practitioner visas; make changes to sponsorship provisions in relation to Sponsored Business Visitor (Short Stay) visas; and make minor technical amendments.

The Regulations effect changes to the Principal Regulations to:

•       provide that no visa application charge is payable in relation to an application for an Educational (Temporary) (Class TH) visa where an applicant appears to meet the requirements for the grant of a Subclass 415 (Foreign Government Agency) visa, holds a diplomatic, official or service passport, and holds a third person note from their home government in support of the application;

•       require applicants seeking to be granted a Subclass 422 (Medical Practitioner) visa to make their application in Australia;

•       allow certain passport holders who are located outside Australia at the time of grant of their Medical Practitioner visa to travel to, and enter Australia without a visa label;

•       include visa condition 8403 (which provides that the holder must visit Immigration to have evidence of visa placed in their passport) as a discretionary condition that may be attached to a Medical Practitioner visa;

•       require applications for Subclass 459 (Sponsored Business Visitor (Short Stay)) visas to be lodged in Australia by the sponsor;

•       extend the current sponsorship arrangements for Sponsored Business Visitor (Short Stay) visas to include organisations specified by Gazette Notice;

•       allow a sponsor to sponsor more than one applicant for a Sponsored Business Visitor (Short Stay) visa;

•       remove the mandatory 5 year suspension of sponsors of applicants for Sponsored Business Visitor (Short Stay) visas where the applicant breaches a visa condition; and

•       make minor technical amendments.

Details of the Regulations are set out in Attachment B.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations commence on 1 March 2004.

0400765A-040127Z

ATTACHMENT A

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, the following provisions may apply:

•       paragraph 5(2)(b) of the Act provides that the regulations prescribe the evidence of the person's English language proficiency;

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

•       subsection 40(1) of the Act provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;

•       subsection 41(1) of the Act provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions;

•       subsection 45B(1) of the Act provides that the amount of visa application charge is the amount prescribed in relation to the application, not exceeding the visa application charge limit;

•       subsection 45B(2) of the Act provides that the regulations may prescribe that the amount in relation to an application may be nil;

•       section 46 of the Act deals with when an application for a visa is a valid application, and in particular:

-       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;

-       paragraph 46(4)(b) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe how an application for a visa of a specified class must be made; and

-       paragraph 46(4)(c) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe where an application for a visa of a specified class must be made; and

•       section 166 of the Act deals with what evidence of identity persons entering Australia must give, and in particular:

-       paragraphs 166(1)(a) and (b) of the Act provide for what evidence a person entering Australia must show an Immigration clearance officer; and

-       subsection 166(2) of the Act provides that a person entering Australia must comply with paragraphs 166(1)(a) and (b) in a prescribed way.

ATTACHMENT B

Details of Migration Amendment Regulations 2004 (No. 1)

Regulation 1 - Name of Regulations

This regulation provides that these regulations are the Migration Amendment Regulations 2004 (No. 1).

Regulation 2 - Commencement

These Regulations commence on 1 March 2004.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedules 1, 2, 3 and 4 amend the Migration Regulations 1994 (the "Principal Regulations").

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by items [1], [2] and [15] of Schedule 2 apply in relation to a person who:

•       makes an application for a visa on or after 1 March 2004; and

•       is outside Australia at the time of application; and

•       enters Australia on or after 1 March 2004.

Subregulation 4(2) provides that the amendments made by Schedule 4 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) before 1 March 2004; or

•       made on or after 1 March 2004.

Subregulation 4(3) provides that the amendments made by:

•       Schedule 1; and

•       items [3], [4], [5], [6], [7], [8], [9], [10], [11], [12], [13] and [14] of Schedule 2; and

•       Schedule 3;

apply in relation to an application for a visa made on or after 1 March 2004.

Schedule 1 - Amendment relating to Educational (Temporary) (Class TH) visas

Item [1] - Schedule 1, subitem 1208(2)

This item substitutes subitem 1208(2) of Schedule 1 to the Principal Regulations with new subitem 1208(2) which relates to the visa application charges payable for an application for an Educational (Temporary) (Class TH) visa. In particular, new subitem 1208(2) provides for the visa application charge for an application for a Subclass 415 (Foreign Government Agency) visa in specified circumstances. Subclass 415 is one of the four subclasses of visas in Class TH.

New subparagraph 1208(2)(a)(i) provides that the first instalment of the visa application charge for a Class TH visa is nil where an applicant:

•       holds a valid diplomatic, official or service passport; and

•       holds a third person note of support for the application from the government or government agency of the applicant's home country; and

•       appears to the Minister, on the basis of the information contained in the application, to meet the requirements for the grant of a Subclass 415 (Foreign Government Agency) visa.

New subparagraph 1208(2)(a)(ii) provides that in any other case the first instalment of the visa application charge is $165. New paragraph 1208(2)(b) provides that in all cases there is no second instalment of the visa application charge payable.

The purpose of this amendment is to make concessions to applicants who are seeking a Subclass 415 visa and who are travelling under a diplomatic, official or service passport and are travelling with the support of their home government, as evidenced in the third person note. Where such applicants apply for a Class TH visa, they are not required to pay any visa application charge.

Subclass 415 is a visa subclass which applies to applicants who seek to:

•       enter Australia to be employed as a representative of a foreign government agency that does not enjoy official status in Australia, and who do not enjoy official status as a representative of such an agency; or

•       enter Australia temporarily under an agreement between Australia and another country; or

•       work in an Australian school as a foreign language teacher employed by a foreign government or a foreign government agency.

Schedule 2 - Amendments relating to Subclass 422 (Medical Practitioner) visas

Item [1] - Subparagraph 3.03(3)(h)(ii)

This item amends subparagraph 3.03(3)(h)(ii) in Division 3.1 of Part 3 of the Principal Regulations.

This amendment is consequential to the insertion of new paragraph 3.03(3)(i) in Division 3.1 of Part 3 of the Principal Regulations by these regulations.

Item [2] - After paragraph 3.03(3)(h)

This item inserts new paragraph 3.03(3)(i) in Division 3.1 of Part 3 of the Principal Regulations.

Regulation 3.03 outlines the evidence of identity and visa that persons entering Australia must provide to an Immigration clearance officer in order to comply with section 166 of the Migration Act 1958.

New paragraph 3.03(3)(i) provides that anon-citizen who holds a Subclass 422 (Medical Practitioner) visa, and is the holder of a valid passport issued by a foreign country specified in a relevant Gazette Notice must show an Immigration clearance office evidence of the person's identity, as specified in Part 1 of Schedule 9 to the Principal Regulations, as well as give the clearance officer a completed passenger card.

A non-citizen to whom new paragraph 3.03(3)(i) applies does not need to show evidence of their Subclass 422 visa at the time they enter Australia. The intention is that, by a further amendment made by these regulations, these people will have condition 8403 attached to their visa, requiring them to have their Subclass 422 visa evidenced at an Immigration office in Australia within a specified time.

Item [3] - Schedule 1, paragraphs 1214AA(3)(a) and (b)

This item substitutes new paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations and omits paragraph 1214AA(3)(b).

New paragraph 1214AA(3)(a) of Schedule 1 provides that an application for a Medical Practitioner (Temporary) (Class UE) visa must be made in Australia, but not in immigration clearance. At the time of application, the applicant may be in or outside Australia.

The purpose of this amendment is to provide that an application for a Medical Practitioner (Temporary) (Class UE) must be made in Australia in order to make a valid application. Requiring applications to be made in Australia will improve the efficiency of visa processing.

Item [4] - Schedule 2, Subdisivision 422.21, note

This item substitutes a new note after Subdivision 422.21 of Schedule 2 to the Principal Regulations.

The new note provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa is outside Australia at time of application, there are no criteria to be satisfied at time of application.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [5] - Schedule 2, clause 422.211

This item amends clause 422.211 of Schedule 2 to the Principal Regulations.

New clause 422.211 provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa is in the migration zone at time of application, the applicant meets the requirements of clause 422.211.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [6] - Schedule 2, clause 422.221

This item substitutes new clause 422.221 of Schedule 2 to the Principal Regulations.

New clause 42.221 of Schedule 2 provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa was outside Australia at time of application, or the applicant was in the migration zone at time of application and the applicant does not hold a Subclass 422 visa, the applicant satisfies the criteria in clauses 422.222 to 422.227B.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [7] - Schedule 2. clause 422.226

This item amends clause 422.226 of Schedule 2 to the Principal Regulations.

New clause 422.226 provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa was outside Australia at time of application and the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002 which relate to any adverse immigration history.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [8] - Schedule 2, clauses 422.227 and 422.228

This item substitutes clauses 422.227 and 422.228 of Schedule 2 to the Principal Regulations for new clauses 422.227, 422.227A, 422.227B and 422.228.

The changes restructure the requirements contained in clause 422.227 to make it simpler to follow, and make changes consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

New clause 422.227 provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone at time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.

New clause 422.227A provides that if, at time of application, an applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone and was also the holder of a student visa:

•       the applicant has successfully completed a course in Australia at diploma level (within the meaning of subregulation 2.26A(6)) or above; and

•       the Minister is satisfied that either it has not been possible to find a person who is suitable for the position in which the applicant's intended employer proposes to employ the applicant, or in the circumstances, the intended employer should not be required to seek a suitable employee in Australia; and

•       the applicant is sponsored by an intended employer that is able to establish that a person with those skills is not reasonably available in Australia; and

•       if the applicant is a private subsidised student, the sponsor establishes a strong case on economic grounds for the grant of the visa, and the Minister is satisfied that it would not be detrimental to Australia's policies in respect of overseas students to grant the visa.

New clause 422.227B provides that if, at time of application, an applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone and was also the holder of an Electronic Travel Authority (Class UD), Long Stay (Visitor) (Class TN), Short Stay (Visitor) (Class TR), Working Holiday (Temporary) (Class TZ) or Subclass 456 (Business (Short Stay)) visa at time of application:

•       the applicant is sponsored by the applicant's intended employer; and

•       the Minister is satisfied that either it has not been possible to find a person who is suitable for the position in which the applicant's intended employer proposes to employ the applicant, or in the circumstances, the intended employer should not be required to seek a suitable employee in Australia.

New clause 422.228 provides that if, at time of application, an applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone and was also the holder of a Subclass 422 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the criteria for the grant of a Subclass 422 visa.

New clause 422.228 is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [9] - Schedule 2, clause 422.312

Division 422.3 of Schedule 2 to the Principal Regulations (including clauses 422.312, 422.326 and 422.326A, which are amended by these regulations) contains the criteria to be satisfied by a person applying for a Subclass 422 visa (referred to here as secondary applicant) who is a member of the family unit of another person (the primary applicant) and is seeking to satisfy or has satisfied the criteria set out in Division 422.2 of Schedule 2.

This item substitutes new clause 422.312 of Schedule 2 to the Principal Regulations.

New clause 422.312 provides that if a secondary applicant for a Medical Practitioner (Temporary) (Class UE) visa is outside Australia at time of application and the application is made separately from that of the member of the family unit who seeks to satisfy or has satisfied the primary criteria, the primary applicant of the family unit is, or is soon expected to be, in Australia.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Another purpose of this amendment is, by deleting former paragraph 422.312(b), to implement the policy intention that a secondary applicant for a Subclass 422 visa, who is outside Australia at time of application and who makes their application separately from the primary applicant, is not precluded from being eligible for the grant of the visa solely on the basis that they may have the intention to seek a permanent migration outcome at a later date.

Item [10] - Schedule 2, clause 422.326

This item amends clause 422.326 of Schedule 2 to the Principal Regulations.

New clause 422.326 provides that if a secondary applicant for a Medical Practitioner (Temporary) (Class UE) visa was outside Australia at time of application and if the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002, which deals with any adverse immigration history.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [11] - Schedule 2, clause 422.326A

This item amends clause 422.326A of Schedule 2 to the Principal Regulations.

New clause 422.326A provides that if a secondary applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone at time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

This amendment is consequential to the amendment to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [12] - Schedule 2, clause 422.411

This item amends clause 422.411 of Schedule 2 to the Principal Regulations.

New clause 422.411 provides that if an applicant for a Medical Practitioner (Temporary) (Class UE) visa was in the migration zone at time of application, the applicant must be in the migration zone at the time of grant.

This amendment is consequential to the amendments to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [13] - Schedule 2, clause 422.412

This item amends clause 422.412 of Schedule 2 to the Principal Regulations.

New clause 422.412 provides that if an applicant for a Medical Practitioner (Temporary) (Class LIE), visa was outside Australia at time of application, the applicant must be outside Australia at the time of grant.

This amendment is consequential to amendments to paragraph 1214AA(3)(a) of Schedule 1 to the Principal Regulations by these regulations.

Item [14] - Schedule 2, clause 422.612

This item amends subclause 422.612, by inserting condition 8403 as a condition that may be attached to a Subclass 422 (Medical Practitioner) visa.

Condition 8403 provides that the holder must visit an Immigration office specified by the Minister for the purpose, within the time specified by the Minister for the purpose, to have evidence of the visa placed in the holder's passport.

The policy intention is that this amendment works in tandem with amendments to regulation 3.03 made by these regulations, such that whilst certain prescribed passport holders granted a Subclass 422 (Medical Practitioner) visa will be permitted to enter Australia without a visa label evidencing the grant of the Subclass 422 visa, it may be necessary for them to obtain one after entering Australia. Hence in this case condition 8403 may be attached to these visas.

Item [15] - Schedule 9, Part 1, after item 27

This item inserts item 28 in Part 1 of Schedule 9 to the Principal Regulations.

Part 1 of Schedule 9 outlines the evidence of identity that a person to whom subregulation 3.03 of Part 3 of the Principal Regulations applies must provide to a clearance officer in order to comply with section 166 of the Migration Act 1958.

New item 28 of Part 1 of Schedule 9 provides that a person to whom paragraph 3.03(3)(1) (inserted by these regulations) applies, that is, a non-citizen who is the holder of a Subclass 422 (Medical Practitioner) visa and who is also the holder of a valid passport issued by a foreign country specified in the relevant Gazette Notice, must provide as evidence of identity a passport and a completed passenger card.

The purpose of new item 28 is to enable a person to whom paragraph 3.03(3)(1) applies to enter Australia with a passport and a completed passenger card only. People to whom paragraph 3.03(3)(1) applies are not required to provide an Immigration clearance officer with evidence of the grant of a visa at that point in time.

Schedule 3 - Amendments relating to Subclass 459 (Sponsored Business Visitor (Short Stay)) visas and Subclass 679 (Sponsored Family Visitor (Short Stay) visas

Item [1] - Regulation 1.20L, heading

This item substitutes the heading to regulation 1.20L of Division 1.4B of Part 1 of the Principal Regulations with the new heading "Limitation on approval of sponsorship - Subclass 679 (Sponsored Family Visitor (Short Stay)) visas".

The new heading is consequential to the amendment of subregulation 1.20L by these regulations.

Item 2 - Subregulation 1.20L(1)

This item amends subregulation 1.20L(1) of Division 1.4B of Part 1 of the Principal Regulations.

The effect of the amendment made by this item is to provide that the Minister must not approve the sponsorship by a sponsor of an applicant for a Short Stay Sponsored (Visitor) (Class UL) visa who appears to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa if:

•       the sponsor has previously sponsored another applicant (the previous applicant) for a Short Stay Sponsored (Visitor) (Class UL) visa; and

•       the previous applicant was granted a visa of that kind; and

•       either, subject to subregulations (2) and (3), the visa is still in effect, or if the visa has ceased to be in effect, the previous applicant did not comply with a condition of the visa and a period of 5 years has not passed since the grant of the visa.

The purpose of this amendment is to restrict the sponsorship limitations in regulation 1.20L to the sponsorship of visa applicants who appear to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa. Sponsors of visa applicants who appear to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa are not limited to sponsoring only one visa applicant at a time and are not subject to the mandatory 5 year suspension of sponsorship if a visa applicant breached a visa condition.

Item [3] - Schedule 1, subitem 1217A(1)

This item substitutes subitem 1217A(1) of Schedule 1 to the Principal Regulations with new subitem 1217A(1).

New subitem 1217A(1) provides that if the applicant is seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa, both forms 1235 and 1238 must be lodged to make a valid application. New subitem 1217A(1) also provides that, if the applicant is seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa, form 48S must be lodged to make a valid application.

The purpose of this amendment is to provide that an applicant seeking to satisfy the criteria for the grant of a Subclass 459 visa, must lodge both the sponsorship form (form 1235) and the application form (form 1238) to make a valid application.

Item [4] - Schedule 1, paragraph 1217A(3)(a)

This item substitutes paragraph 1217A(3)(a) of Schedule 1 to the Principal Regulations with new paragraph 1217A(3)(a), and inserts new paragraph 1217A(3)(aa) in Schedule 1 to the Principal Regulations.

New paragraph 1217A(3)(a) provides that an application by a person seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa must be made in Australia, but not in Immigration clearance, and must be lodged by the person, agency, instrumentality or organisation mentioned in clause 459.214 of Schedule 2 to the Principal Regulations.

New paragraph 1217A(3)(aa) provides that an application by a person seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa must be made outside Australia.

The purpose of this amendment is to provide that an applicant seeking to satisfy the criteria for the grant of a Subclass 459 visa, must have his or her visa application lodged in Australia by the person, agency, instrumentality or organisation proposing to sponsor the applicant.

Item [5] - Schedule 2, pagagraph 459.214(b)

This item amends paragraph 459.214(b) of Schedule 2 to the Principal Regulations.

This amendment is consequential to the insertion of new paragraph 459.214(c) in Schedule 2 to the Principal Regulations by these regulations.

Item [6] - Schedule 2, after paragraph 459.214(b)

This item inserts new paragraph 459.214(c) in Schedule 2 of the Principal Regulations.

Paragraphs 459.214(a) and (b) provide that an applicant seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa may be sponsored by:

•       a settled Australian citizen, or a settled Australian permanent resident who is a member of the Commonwealth Parliament or a State Parliament, or is a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory, or holds the office of mayor; or

•       a Commonwealth government agency or instrumentality or a State or Territory government agency or instrumentality.

New paragraph 459.214(c) permits organisations specified by Gazette Notice for this paragraph to be sponsors of applicants for Subclass 459 visas.

The purpose of this amendment is to extend sponsorship arrangements for a Subclass 459 visa to promote broader participation by the Australian business community.

Schedule 4 - Amendment relating to Subclass 573 (Higher Education Sector) visas

Item [1] - Schedule 5A, Part 5, Division 2, sub-subparagraraphs 5A504(1)(e)(ii)(E) and (F)

This item makes a technical amendment by inserting `the Republic of Ireland' into subparagraph 5A504(1)(e)(ii) of Part 5 of Schedule 5A to the Principal Regulations.

Clause 5A504 outlines the English language proficiency requirements for assessment level 4 for Subclass 573 (Higher Education Sector) visa applicants.

The purpose of this amendment is to correct an oversight in failing to include the Republic of Ireland in the list of countries in which an applicant may give evidence that he or she has undertaken at, least 5 years of study in English in order to meet the English language proficiency requirements. This amendment makes paragraph 5A504(1)(e) consistent with the prescription of the Republic of Ireland in other similar provisions in Schedule 5A, for example, subparagraph 5A404(f)(ii).


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