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MIGRATION AMENDMENT REGULATIONS 2004 (NO. 8) 2004 NO. 390
Issued by the Minister for Immigration and
Multicultural and Indigenous
Affairs
Migration Act 1958
Subsection 504(1) of the Migration Act 1958 (the Act) provides in part 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 the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to: enable a visa application charge to be paid by electronic funds transfer in certain circumstances; make various amendments to Business (Long Stay), Student, Sponsored Family Visitor, Adoption, Sponsored Skilled and Student Guardian visa provisions; amend the definition of member of the family unit; amend provisions relating to the review of visa cancellation decisions; and make a number of technical amendments.
In particular, the Regulations effect changes to the Principal Regulations to:
• make various changes relating to Subclass 457 (Business (Long Stay)) visas including removing references to withdrawn sponsorship and nomination forms, allowing these visas to be granted either in or outside Australia, irrespective of where the applicant was when they applied, and ensure only one further Business (Long Stay) visa can be granted to Independent Executives;
• enable people applying for Australian visas using the Internet to pay the visa application charge by funds transfer in Australian dollars;
• make various technical amendments relating to Student visas;
• require an application for a Subclass 679 (Sponsored Family Visitor) visa to be lodged in Australia by the visa applicant's sponsor;
• extend the visa validity period of stay in Australia for holders of a Subclass 679 (Sponsored Family Visitor) visa from a period of 3 months to up to 12 months;
• amend the definition of member of the family unit to implement migration policy, that relatives of a family head must be single (that is, never married, or widowed, divorced or separated), in order to meet that definition;
• amend certain criteria for the grant of a Subclass 102 (Adoption) visa to streamline processing of this visa, and to remove redundant requirement relevant to Subclass 102 (Adoption) and Subclass 802 (Child) visa applications;
• make technical amendments to secondary time of application criteria in visa Subclasses 881 (Skilled - Australian-sponsored Overseas Student) and 882 (Skilled - Designated Area-sponsored Overseas Student);
• make technical amendments relating to visa Subclass 580 (Student Guardian);
• allow certain visa holders who have had a visa cancellation decision, or a decision not to revoke a visa cancellation, set aside by the Migration Review Tribunal (MRT) to apply for another visa within 28 days of being notified of the MRT decision; and
• make various technical amendments.
Details of the Regulations are set out in Attachment B.
The Regulations reflect regular changes that are made to the Principal Regulations. These are amendments that give effect to the ongoing update of immigration policy and regulations.
Regulations 1, 2, 3 and 4 and Schedule 7 are taken to have commenced on 1 July 2004. Schedules 2 and 8 commence on the date of their notification in the Gazette. Schedules 1, 3, 4, 5 and 6 to the Regulations commence on 2 April 2005. The range of commencement dates are a consequence of various systems requirements necessary to allow the implementation of the Regulations.
The amendments made by Schedule 7 to the Regulations have retrospective effect in that they amend time of application criteria, with effect from 1 July 2004, which are required to be satisfied by applicants for certain sponsored skilled visas whose applications were made, but not finally determined, prior to the notification of the Regulations in the Gazette. The Australian Government Solicitor (AGS) advises that the amendments made by Schedule 7 to the Regulations are not contrary to subsection 48(2) of the Acts Interpretation Act 1901 as the changes do not affect the rights of a person at the date of notification so as to disadvantage the person and do not impose liabilities on a person in respect of anything done or omitted to be done before the date of notification. Further, following AGS advice, the amendments made by Schedule 7 are subject to transitional provisions which put the validity of the retrospective effect beyond doubt.
The amendments made by Part 1 of Schedule 8 to the Regulations (other than item [5]) apply to applications for visas made, but not determined, on or after 27 August 2004 and before Schedule 8 commences, as well as applying to applications made on or after the day on which that Schedule commences. The amendments concern the criteria to be satisfied, at the time of application, for the making of a valid application. Since a decision on validity would be pending at the time of notification of the amendments, the new criteria do not affect the validity of such an application, but could affect the outcome at the time of decision. The Office of Legislative Drafting has advised that these amendments do not fall within the ambit of subsection 48(2) of the Acts Interpretation Act 1901, since they do not take effect before the date of their notification.
0407431A-041112Z
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, 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. Subsection 5(1) of the Act provides, amongst other things, that "prescribed" means prescribed by the regulations.
In addition to subsection 504(1), the following provisions may apply:
• subsections 29(2) and 29(3) of the Act, which provide that the regulations prescribe a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;
• subsection 31(1) of the Act, which provides that the regulations prescribe classes of visas;
• subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;
• subsection 31(4) of the Act, which provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;
• subsection 31(5) of the Act, which provides that the regulations may specify that a visa is a visa of a particular class;
• subsection 40(1) of the Act, which 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, which provides that the regulations may provide that visas or visas of a specified class are subject to specified conditions;
• paragraph 41(2)(b) of the Act, which provides that without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia, which, without limiting the generality of this paragraph, may be restrictions on doing any work, work other than specified work, or work of a specified kind;
• section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;
• subsection 45B(1) of the Act, which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;
• paragraph 45C(2)(a) of the Act, which provides, among other things, for:
- the recovery of visa application charge in relation to visa applications;
- the way, including the currency, in which a visa application charge is to be paid;
- the persons who may be paid a visa application charge on behalf of the Commonwealth;
• subsection 46(3) of the Act, which 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, which 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;
• subsection 52(1) of the Act, which provides that a visa applicant or interested person must communicate with the Minister in a prescribed way;
• subsection 52(2) of the Act, which provides that the regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way;
• section 70 of the Act, which provides that, subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa;
• subsection 71(1) of the Act, which provides for the regulations to prescribe the way in which evidence of a visa is to be given;
• subsection 140C(1) of the Act, which provides that the regulations may provide that sponsorship by an approved sponsor is a criterion for a valid application for a visa of a prescribed kind (however described);
• section 140E of the Act, which provides that the Minister must approve a person as a sponsor if prescribed criteria are satisfied, and that different criteria may be prescribed for different kinds of visa (however described);
• subsection 140F(1) of the Act, which provides that the regulations may establish a process for the Minister to approve a person as a sponsor;
• subsections 140G(1) and (2) of the Act, which provide that an approval as a sponsor may be on terms specified in the approval, and that the terms must be of a kind prescribed by the regulations;
• subsection 338(9) of the Act, which provides that a decision that is prescribed for the purposes of this subsection is an "MRT-reviewable decision";
• paragraph 347(2)(d) of the Act, which provides that if the MRT-reviewable decision is covered by subsection 338(9) - only the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection may make an application for review;
• paragraph 504(1)(e) of the Act, which provides that the regulations may be made in relation to the giving of documents to, the lodging of documents with, or the service of documents on the Minister, the Secretary or any other person or body, for the purposes of the Act;
• section 505 of the Act, which provides that, to avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
- is to get a specified person or organisation, or a person or organisation in a specified class, to give an opinion on, or make an assessment of, or make a finding or decision about a specified matter; and
- is to have regard to that opinion, assessment, finding or decision, or take that opinion, assessment, finding or decision to be correct;
for the purposes of deciding whether the applicant satisfies the criterion.
ATTACHMENT B
Details of the Migration Amendment Regulations 2004 (No. 8)
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2004 (No. 8).
Regulation 2 - Commencement
This regulation provides that these Regulations commence, or are taken to have commenced, as follows:
• on 1 July 2004 - regulations 1, 2, 3 and 4 and Schedule 7;
• on the date of their notification in the Gazette - Schedules 2 and 8;
• on 2 April 2005 - Schedules 1, 3, 4, 5 and 6.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedules 1, 2, 3, 4, 5, 6, 7 and 8 amend the Migration Regulations 1994 (the Principal Regulations).
Regulation 4 - Transitional
Subregulation 4(1) provides that the amendments made by Schedule 1, other than by item [8], apply in relation to:
• an application for a visa; or
• an application for approval as a standard business sponsor; or
• an application for approval of a nomination of a business activity;
made on or after 2 April 2005.
Subregulation 4(2) provides that the amendment made by Item [8] of Schedule 1 does not apply in relation to a decision under regulation 1.20E of the Principal Regulations as in force before 1 July 2003.
Subregulation 4(3) provides that amendments made by Schedule 2 apply in relation to an application for a visa made on or after the day on which Schedule 2 commences.
Subregulation 4(4) provides that the amendments made by Schedule 3 and 4 apply in relation to an application for a visa made on or after 2 April 2005.
Subregulation 4(5) provides that the amendments made by Schedule 5 apply in relation to:
• an application for a visa; and
• an application for approval as a sponsor; and
• a nomination in relation to an application for a visa;
made on or after 2 April 2005.
Subregulation 4(6) provides that the amendments made by Schedule 5 apply in relation to the cancellation of a visa if the application for a visa was made on or after 2 April 2005.
Subregulation 4(7) provides that the amendments made by Schedule 6 apply in relation to an application for a visa made on or after 2 April 2005.
Subregulation 4(8) provides that the amendments made by Schedule 7 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 1 July 2004; or
• made on or after 1 July 2004.
The effect of the transitional arrangements in subregulation 4(8) is that the amendments made by Schedule 7 have a retrospective effect on certain visa applications from 1 July 2004.
Subregulation 4(9) provides that for an application mentioned in subregulation (8), the amendments made by these Regulations do not apply to the extent that, in the period commencing 1 July 2004 and ending immediately before these Regulations are notified in the Gazette:
• the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person; or
• liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of notification.
Subregulation 4(10) provides that the amendments made by an item in Part 1 of Schedule 8, other than by item [5], apply in relation to an application for a visa:
• made on or after 27 August 2004 and before Schedule 8 commences, but not finally determined (within the meaning of subsection 5(9) of the Act) before Schedule 8 commences; or
• made on or after the day on which Schedule 8 commences.
Subregulation 4(11) provides that the amendments made by item [5] in Part 1 of Schedule 8 and Part 2 of Schedule 8 apply in relation to an application for a visa made on or after the day on which Schedule 8 commences.
Schedule 1 - Amendments relating to business visas, sponsorship and review of decisions
Item [1] - Paragraph 1.20C(2)(a)
Item [2] - Paragraph 1.20C(2)(b)
Item [3] - Paragraph 1.20D(2)(f)
Item [4] - Paragraph 1.20DA(2)(e)
These items amend paragraphs 1.20C(2)(a) and (b), 1.20D(2)(f) and 1.20DA(2)(e) of Part 1 of the Principal Regulations to remove references to form 1067.
From 1 July 2003, form 1067 has not been made available to persons applying for approval as standard business sponsors. From this date, all such applications have been made using the new streamlined forms 1196 or 1196 (Internet). The old form 1067 had been retained in the Principal Regulations as a transitional measure. However, this measure is no longer required as the transition to the new forms has been completed.
Item [5] - Paragraph 1.20G(3)(a)
Item [6] - Paragraph 1.20G(3)(b)
Item [7] - Subregulation 1.20GA(3)
These items amend paragraphs 1.20G(3)(a) and (b), and subregulation 1.20GA(3), of Part 1 of the Principal Regulations to remove references to form 1068.
From 1 July 2003, form 1068 has not been made available to persons nominating business activities in which a non-citizen is proposed to be employed by the person in Australia. From this date, all such applications have been made using the new streamlined forms 1196 or 1196 (Internet). The old form 1068 had been retained in the Principal Regulations as a transitional measure. However, this measure is no longer required as the transition to the new forms has been completed.
Item [8] - Paragraph 4.02(4)(b)
This item omits paragraph 4.02(4)(b) of Part 4 of the Principal Regulations.
Paragraph 4.02(4)(b) provided that a decision under regulation 1.20E of Part 1 of the Principal Regulations to refuse to renew the approval of a person as a pre-qualified business sponsor was able to be reviewed by the Migration Review Tribunal. The pre-qualified business sponsor system was a form of temporary business sponsorship which was repealed on 1 July 2003. Regulation 1.20E, in the form to which paragraph 4.02(4)(b) related, was repealed by item [4] of Schedule 1 to the Migration Amendment Regulations 2003 (No. 5). Paragraph 4.02(4)(b) was retained as a transitional measure until it was certain that no persons were able to seek review under this provision.
Further, a new version of regulation 1.20E was inserted by item [13] of Schedule 3 to the Migration Amendment Regulations 2004 (No. 3) which provides for the term of approval of a person as a standard business sponsor. Currently, there are two forms of standard business sponsorship, sponsorship relating to either Australian businesses or overseas businesses. From 1 July 2003, the standard business sponsorship system is the only form of temporary business sponsorship available to businesses. In addition, the current version of regulation 1.20E does not provide for the making of any decision. As a consequence, paragraph 4.02(4)(b) is potentially misleading.
Item [9] - Paragraph 4.02(4)(k)
This item amends paragraph 4.02(4)(k) of Part 4 of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 4.02(4)(l) in Part 4 of the Principal Regulations by these Regulations.
Item [10] - After paragraph 4.02(4)(k)
This item inserts new paragraph 4.02(4)(l) in Part 4 of the Principal Regulations.
Subsection 338(5) of the Act provides that a decision to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
• the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
• the non-citizen, as required by a criterion for the grant of a visa, was sponsored or nominated by an Australian citizen, a company or partnership that operates in the migration zone, the holder of a permanent visa, or certain New Zealand citizens.
Amendments to Division 457.4 of Schedule 2 to the Principal Regulations by these Regulations allow applicants to be in or outside Australia at the time their Subclass 457 (Business (Long Stay)) visas are granted, irrespective of where the applicants were when they applied. This amendment alone would mean that sponsors or nominators of such applicants would cease to have the right to seek review under subsection 338(5) where the visa was applied for outside Australia.
Subsection 338(9) of the Act provides that the regulations may prescribe decisions able to be subject to merits review by the Migration Review Tribunal (MRT), that is, an MRT-reviewable decision.
Accordingly, new paragraph 4.02(4)(l), made under subsection 338(9) of the Act, ensures that the sponsor or nominator (that is, a person, partnership or company as described in new subparagraph 4.02(4)(l)(ii)) of an applicant for a Subclass 457 visa:
• whose application is refused; and
• is outside Australia at the time of application;
is able to continue to be able to seek the review of such decisions.
Item [11] - Paragraph 4.02(5)(b)
This item amends paragraph 4.02(5)(b) of Part 4 of the Principal Regulations. This amendment is consequential to the repeal of paragraph 4.02(4)(b) in Part 4 of the Principal Regulations by these Regulations.
Item [12] - Paragraph 4.02(5)(j)
This item amends paragraph 4.02(5)(j) of Part 4 of the Principal Regulations. This amendment is consequential to the insertion of new paragraph 4.02(5)(k) in Part 4 of the Principal Regulations by these Regulations.
Item [13] - After paragraph 4.02(5)(j)
This item inserts new paragraph 4.02(5)(k) in Part 4 of the Principal Regulations. New paragraph 4.02(5)(k), made under paragraph 347(2)(d) of the Act, provides that an application for review of a decision under new paragraph 4.02(4)(l), inserted by these Regulations, may only be made by the sponsor or nominator of the applicant who was refused the grant of a Subclass 457 (Business (Long Stay)) visa.
Item [14] - Schedule 2, clause 457.221
This item amends clause 457.221 of Schedule 2 to the Principal Regulations to provide that this clause applies to applicants who are in Australia at the time of decision. Clause 457.221 makes it a requirement that these applicants have substantially complied with the conditions which apply or applied to the last substantive visa held by them, and any subsequent bridging visa.
This amendment is consequential to amendments to Division 457.4 of Schedule 2 to the Principal Regulations by these Regulations which allow applicants to be in or outside Australia at the time their Subclass 457 (Business (Long Stay)) visas are granted, irrespective of where the applicants were when they applied.
Item [15] - Schedule 2, after clause 457.221
This item inserts new clause 457.221A in Schedule 2 to the Principal Regulations. New clause 457.221A makes it a time of decision requirement that if an applicant is in Australia but was outside Australia at the time of application, then he or she must be the holder of certain visas specified in paragraphs 457.211(a), (b), (c) or (ca).
This amendment is consequential to amendments to Division 457.4 of Schedule 2 to the Principal Regulations by these Regulations which allow applicants to be in or outside Australia at the time their Subclass 457 (Business (Long Stay)) visas are granted, irrespective of where the applicants were when they applied.
The purpose of new clause 457.221A is to ensure that if an applicant is in Australia, but was outside Australia when he or she applied for a Subclass 457 visa, he or she must be the holder of a specified substantive visa in order to satisfy this new time of decision criterion. This measure assists in reducing the abuse of the temporary business entry scheme as a means of prolonging the stay of various non-citizens in Australia.
Item [16] - Schedule 2, subparagraph 457.223(7A)(a)(i)
This item substitutes subparagraph 457.223(7A)(a)(i) of Schedule 2 to the Principal Regulations with new subparagraph 457.223(7A)(a)(i).
Subclause 457.223(7A) provides the requirements which must be met by an applicant who seeks a further Subclass 457 (Business (Long Stay)) visa on the basis that they are an "independent executive". The intention has been that only a single further independent executive visa is to be granted to persons who already hold a Subclass 457 visa as independent executives if certain requirements are met.
New subparagraph 457.223(7A)(a)(i) ensures that only:
• applicants who hold Subclass 457 visas granted on the basis that they met the requirements in subclause 457.223(7); or
• applicants who met the secondary criteria in Subdivision 457.32 as spouses of persons who hold Subclass 457 visas granted on the basis that the holder met the requirements in subclause 457.223(7);
are able to be granted a further Subclass 457 visa on the basis of being an independent executive.
This amendment closes a loophole which allowed primary and secondary applicants to alternately be granted more than one further Subclass 457 visa on the basis of satisfying the independent executive requirements in subclause 457.223(7A).
Item [17] - Schedule 2, paragraph 457.225(a)
This item substitutes paragraph 457.225(a) of Schedule 2 to the Principal Regulations with new paragraph 457.225(a) to provide that this clause applies to applicants who are outside Australia at the time of decision. Clause 457.225 makes it a requirement that these applicants satisfy special return criteria 5001 and 5002, which relate to persons who have been deported, had a visa cancelled or have been removed from Australia under certain provisions of the Act.
This amendment is consequential to amendments to Division 457.4 of Schedule 2 to the Principal Regulations by these Regulations which allows applicants to be in or outside Australia at the time their Subclass 457 (Business (Long Stay)) visas are granted, irrespective of where the applicants were when they applied.
Item [18] - Schedule 2, clause 457.323
This item amends clause 457.323 of Schedule 2 to the Principal Regulations to provide that this clause applies to applicants who are in Australia at the time of decision. Clause 457.323 makes it a requirement that these applicants have substantially complied with the conditions which apply or applied to the last substantive visa held by them.
This amendment is consequential to amendments to Division 457.4 of Schedule 2 to the Principal Regulations by these Regulations which allows applicants to be in or outside Australia at the time their Subclass 457 (Business (Long Stay)) visas are granted, irrespective of where the applicants were when they applied.
Item [19] - Schedule 2, Division 457.4
This item substitutes Division 457.4 of Schedule 2 to the Principal Regulations with new Division 457.4 which includes new clause 457.411.
New clause 457.411 provides that an applicant for a Subclass 457 (Business (Long Stay)) visa may be either in or outside Australia at the time of grant, but is not permitted to be in immigration clearance. The purpose of this change is to make the application process simpler for applicants who may be required to either enter Australia on another class of visa or depart Australia before their Subclass 457 application has been decided. Previously, such applicants could only be granted a Subclass 457 visa if they were in Australia at both the time of application and the time of grant or outside Australia at both the time of application and the time of grant.
Item [20] - Further amendments - (Internet)
This item makes technical amendments to the specified paragraphs in Parts 1 and 2, and Schedule 2 to the Principal Regulations to omit each reference to the term "(internet)" and insert the term "(Internet)". This achieves consistency of reference to this term in the Principal Regulations using the proper style.
Schedule 2 - Amendments relating to Internet applications for visas
Item [1] - Regulation 2.12JA
This amendment substitutes regulation 2.12JA of Part 2 of the Principal Regulations with new regulation 2.12JA. New regulation 2.12JA provides that a visa application charge in relation to an Internet application must be paid by either credit card or funds transfer in accordance with the instructions given to the applicant as part of making the Internet application.
New regulation 2.12JA also provides that:
• if the visa application charge is paid by credit card, payment of the charge is taken to have been received only when the correct amount of the payment has been confirmed by the issuer of the credit card; and
• if the visa application charge is paid by funds transfer, payment of the charge is taken to have been received only when the payment amount is electronically matched to the applicant's Internet application form.
Subsection 46(1) of the Act includes the requirement that, for an application for a visa to be valid, any visa application charge that the regulations require to be paid at the time when the application is made has been paid.
Certain information identifying the applicant must be provided at the time of making the payment and will be used to electronically match the payment to the applicant's Internet application form. The details of how to ensure correct information is provided for this purpose will be included in the instructions given to the applicant as part of making the Internet application. Advice about the status of a given payment will be made available to the applicant on the Department of Immigration and Multicultural and Indigenous Affairs' (the Department's) web site.
In the event that an underpayment is received, information regarding the additional payment required to reach the correct amount of the visa application charge will be available to the applicant via the Internet. Payment will not be deemed to have been made until the correct amount of the visa application charge is received and electronically matched to the applicant's Internet application form.
Monies received that amount to an overpayment will be considered valid payments. In the event of an overpayment, notification in relation to the reimbursement of the amount overpaid will be available to the applicant via the Internet.
Applicants will be able to view the progress of their application on the Department's web site, which will display the date the visa application charge is taken to have been received in accordance with new regulation 2.12JA.
When submitting an Internet application form, applicants will be told that they must pay the visa application charge within a particular period from the date of submitting that form. If no payment is received within that period, applicants will be required to complete a new application form.
Item [2] - Subregulation 5.36(1)
This item makes a consequential amendment to subregulation 5.36(1) of Part 5 of the Principal Regulations to insert a reference to new subregulation 5.36(3A) which is inserted by these Regulations.
Item [3] - After subregulation 5.36(3)
This item inserts new subregulation 5.36(3A) in Part 5 of the Principal Regulations. New subregulation 5.36(3A) provides that a visa application charge payment made by credit card or funds transfer, in accordance with new regulation 2.12JA, as substituted by these Regulations, must be made in Australian dollars. Payments made in any other currency will not be accepted.
Schedule 3 - Amendments relating to student visas
Item [1] - Schedule 1, subparagraph 1222(2)(a)(i)
This item amends subparagraph 1222(2)(a)(i) of Schedule 1 to the Principal Regulations by replacing the words "a family member" with the words "a member of the family unit".
The purpose of this amendment is to ensure that this provision applies only to applicants for a Student (Temporary) (Class TU) visa or members of the family unit of these applicants. The term member of the family unit is defined in subregulation 1.12(2) of the Principal Regulations for applicants for Class TU visas, as meaning a spouse or dependent child of an applicant, or a dependent child of the applicant or that spouse, who is unmarried and has not turned 18.
Item [2] - Schedule 2, clause 570.111, after definition of course fees
This item amends clause 570.111 of Schedule 2 to the Principal Regulations to insert a definition of the term, course of study.
The amendment made by this item defines course of study, for the purposes of Subclass 570 (Independent ELICOS Sector) student visas, to mean a full-time registered course of study. ELICOS is defined in regulation 1.03 as an English Language Intensive Course for Overseas Students that is a registered course.
This item also inserts an explanatory note after the definition of course of study, inserted by these Regulations. The explanatory note refers applicants to subregulation 1.40(2) of the Principal Regulations to determine whether a course of study is a principal course.
The purpose of this amendment is to define course of study for the purpose of Subclass 570 (Independent ELICOS Sector) student visas.
Item [3] - Schedule 5A, clause 5A101, definition of foundation course
This item makes a minor technical amendment to clause 5A101 of Schedule 5A to the Principal Regulations to relocate the definition of foundation course after the definition of first 36 months to ensure that it appears in the correct alphabetical order.
Item [4] - Schedule 5A, subparagraph 5A509(b)(ii)
This item amends subparagraph 5A509(b)(ii) of Schedule 5A to the Principal Regulations to omit the words "of at least 1 year's duration".
The purpose of this amendment is to remove the requirement that, where an Assessment Level 3 applicant for a Subclass 573 (Higher Education Sector) visa has completed a foundation course in Australia, that course must have been of at least one year's duration if the applicant had successfully completed Year 11, but not Year 12 of secondary education.
Item [5] - Further amendments - Schedule 5A
This item makes the following technical amendments to clause 5A304 of Schedule 5A to the Principal Regulations:
• subparagraph 5A304(1)(c)(ii) is amended to replace the word "that" with the word "than" to correct a grammatical error;
• sub-subparagraph 5A304(8)(a)(vii)(A) is amended to replace the term "PRC students" with the correct term "PRC applicants";
• sub-subparagraph 5A304(8)(b)(viii)(A) is amended to replace the term "PRC students" with the correct term "PRC applicants".
Item [6] - Further amendments - Schedule 5A
This item makes the following technical amendments to clause 5A304 of Schedule 5A to the Principal Regulations:
• sub-subparagraph 5A304(8)(a)(viii)(A) is amended to omit each mention of the term "PRC students" and replace each mention with the correct term "PRC applicants";
• sub-subparagraph 5A304(8)(b)(ix)(A) is amended to omit each mention of the term "PRC students" and replace each mention with the correct term "PRC applicants".
Schedule 4 - Amendments relating to Sponsored Family Visitor visas
Item [1] - Regulation 1.20L, heading
This item substitutes the heading to regulation 1.20L of Part 1 of the Principal Regulations with a new heading.
The new heading to regulation 1.20L "Limitation on approval of sponsorship - Subclass 679 (Sponsored Family Visitor) visas" gives effect to the new Subclass 679 (Sponsored Family Visitor) visa name, effected by these Regulations.
Item [2] - Paragraph 1.20L(1)(a)
This item substitutes paragraph 1.20L(1)(a) of Part 1 of the Principal Regulations with new paragraph 1.20L(1)(a).
The purpose of new paragraph 1.20L(1)(a) is to ensure that this paragraph applies to sponsors who have previously sponsored another applicant for a "Sponsored (Visitor) (Class UL) visa" or a "Short Stay Sponsored (Visitor) (Class UL) visa". This amendment is consequential to the change of name of the Class UL visa from "Short Stay Sponsored (Visitor) (Class UL)" to "Sponsored (Visitor) (Class UL)" by these Regulations.
Item [3] - Paragraph 1.20L(3)(a)
This item substitutes paragraph 1.20L(3)(a) of Part 1 of the Principal Regulations with new paragraph 1.20L(3)(a).
The purpose of new paragraph 1.20L(3)(a) is to ensure that this paragraph refers to a previous applicant who is the holder of either a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa or a Subclass 679 (Sponsored Family Visitor) visa. This amendment is consequential to the change of name of Part 679 of Schedule 2 to the Principal Regulations to "Subclass 679 (Sponsored Family Visitor)" by these Regulations.
Item [4] - After subparagraph 2.43(1)(j)(ia)
This item inserts the new subparagraph 2.43(1)(j)(ib) into Part 2 of the Principal Regulations.
The purpose of new subparagraph 2.43(1)(j)(ib) is to ensure that paragraph 2.43(1)(j), which relates to the cancellation of a visa under section 116 of the Act, applies to both Subclass 679 (Sponsored Family Visitor (Short Stay)) visa holders and Subclass 679 (Sponsored Family Visitor) visa holders. This amendment is consequential to the change of name of Part 679 of Schedule 2 to the Principal Regulations to "Subclass 679 (Sponsored Family Visitor)" by these Regulations.
Item [5] - Subregulation 4.23(1)
This item amends subregulation 4.23(1) in Part 4 of the Principal Regulations.
The purpose of the amendment to subregulation 4.23(1) is to ensure that this subregulation also refers to review of a decision to refuse to grant a Sponsored (Visitor) (Class UL) visa. This amendment is consequential to the change of name of the Class UL visa from Short Stay Sponsored (Visitor) (Class UL) to Sponsored (Visitor) (Class UL), in accordance with the new heading to Item 1217A, effected by these Regulations.
Item [6] - Schedule 1, item 1217A, heading
This item amends the heading to item 1217A in Schedule 1 to the Principal Regulations. The new heading to item 1217A `Sponsored (Visitor) (Class UL)' gives effect to the new Class UL visa name, which has changed from Short Stay Sponsored (Visitor) (Class UL) to Sponsored (Visitor) (Class UL).
The purpose of this amendment is to ensure that the new item 1217A heading recognises that the Subclass 679 (Sponsored Family Visitor) visa is able to be granted for a period of stay of up to 12 months, (in accordance with new paragraph 679.511(b), effected by these Regulations), which is not regarded by Immigration as a `short stay'.
Item [7] - Schedule 1, paragraph 1217A(1)(b)
This item amends paragraph 1217A(1)(b) of Schedule 1 to the Principal Regulations. New paragraph 1217A(1)(b) provides that if an applicant is seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor) visa, form 48S and form 1149 must be completed in order to make a valid application.
Form 48S is to be completed by an applicant seeking to visit Australia as a sponsored family visitor. Form 1149 is to be completed by a sponsor seeking approval as a sponsor of a sponsored family visitor.
Item [8] - Schedule 1, paragraph 1217A(3)(aa)
This item substitutes paragraph 1217A(3)(aa) of Schedule 1 to the Principal Regulations with new paragraph 1217A(3)(aa).
The purpose of this amendment is to provide that if a person is seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor) visa, their application:
• must be made in Australia, but not in immigration clearance; and
• must be lodged by the sponsor of the applicant.
The purpose of this amendment is to encourage a closer relationship between Immigration and the family visitor sponsor and facilitate communication between Immigration and the family visitor sponsor.
Item [9] - Schedule 2, Part 679, heading
This item substitutes the heading to Part 679 in Schedule 2 to the Principal Regulations with a new heading to Part 679. The new heading to Part 679 `Subclass 679 Sponsored Family Visitor' is consequential to amendments made to paragraph 679.511(b) by these Regulations, which extends the maximum period of stay allowable for an applicant of a Subclass 679 (Sponsored Family Visitor) visa, from 3 months to 12 months, which is not regarded by Immigration as a short stay.
Item [10] - Schedule 2, clause 679.213
This item amends clause 679.213 of Schedule 2 to the Principal Regulations. Amended clause 679.213 provides that the period of stay proposed in the application for a Subclass 679 (Sponsored Family Visitor) visa must not exceed 12 months.
This amendment is consequential to amendments made to paragraph 679.511(b), by these Regulations, which extends the maximum period of stay allowable for an applicant of a Subclass 679 (Sponsored Family Visitor) visa, from 3 months to 12 months, thereby encouraging more people to apply for a Subclass 679 visa.
Item [11] - Schedule 2, paragraph 679.511(b)
This item amends paragraph 679.511(b) of Schedule 2 to the Principal Regulations. Amended paragraph 679.511(b) provides that a Subclass 679 (Sponsored Family Visitor) visa is a temporary visa permitting the holder to remain in Australia for a period (not longer than 12 months after the date of entry) specified by the Minister for the purpose.
The purpose of this amendment is to extend the maximum period of stay in Australia specified by the Minister as the holder of a Subclass 679 (Sponsored Family Visitor) visa from 3 to 12 months, thereby encouraging more people to apply for a Subclass 679 visa.
Item [12] - Further amendments - Sponsored (Visitor) visa
This item amends subregulation 1.20L(1) of Part 1 of the Principal Regulations and paragraph 5.38(1)(a) of Part 5 of the Principal Regulations.
The purpose of this amendment is to remove the reference to `Short Stay' from the visa Class UL name, as the maximum period of stay on a Subclass 679 (Sponsored Family Visitor) visa can now exceed 3 months, which is not regarded by Immigration as a `short stay'. These amendments are consequential to the change of the visa Class UL name from Short Stay Sponsored (Visitor) (Class UL) to Sponsored (Visitor) (Class UL), in accordance with the new heading to item 1217A in Schedule 1 to the Principal Regulations, effected by these Regulations.
Item [13] - Further amendments - Short Stay Sponsored (Visitor) visa
This item amends the following provisions by including a reference to a Sponsored (Visitor) (Class UL) visa:
• Schedule 2, subparagraph 855.211(1)(a)(iii)
• Schedule 2, sub-subparagraph 855.211(2)(b)(i)(C)
• Schedule 2, subparagraph 856.211(1)(a)(iii)
• Schedule 2, sub-subparagraph 856.211(2)(b)(i)(C)
• Schedule 2, subparagraph 857.211(1)(a)(iii)
• Schedule 2, sub-subparagraph 857.211(2)(b)(i)(C)
• Schedule 2, subparagraph 858.211(1)(a)(iii)
• Schedule 2, sub-subparagraph 858.211(2)(b)(i)(C)
The purpose of these amendments is to ensure that these provisions refer to both the holder of a Short Stay Sponsored (Visitor) (Class UL) visa and a Sponsored (Visitor) (Class UL) visa. This amendment is consequential to the change of name of the Class UL visa from Short Stay Sponsored (Visitor) (Class UL), to Sponsored (Visitor) (Class UL), in accordance with the new heading to item 1217A in Schedule 1 to the Principal Regulations, effected by these Regulations.
Item [14] - Further amendments - Sponsored Family Visitor visa
This item amends subregulation 1.20L(1) of Part 1 of the Principal Regulations and paragraph 1217A(3)(d) and subitem 1217A(4) of Schedule 1 to the Principal Regulations.
The purpose of this amendment is to remove the reference to `Short Stay' from the visa Subclass 679 name, as the maximum period of stay on a Subclass 679 (Sponsored Family Visitor) visa can now exceed 3 months, under amended paragraph 679.511(b), by these Regulations, and therefore is not regarded by Immigration as a short stay. Thus these amendments are consequential to the change of name of the Subclass 679 visa from Subclass 679 (Sponsored Family Visitor (Short Stay)) to Subclass 679 (Sponsored Family Visitor), in accordance with the new heading to Part 679 of Schedule 2 to the Principal Regulations, effected by these Regulations.
Schedule 5 - Amendments relating to the definition of member of the family unit
Item [1] - Paragraph 1.12(1)(d)
This item omits paragraph 1.12(1)(d) from Part 1 of the Principal Regulations.
The purpose of the amendment is to ensure that, consistent with migration policy, a person who is a relative of the family head or of a spouse of the family head must be single (that is, must have never married, be widowed, divorced or separated) to satisfy the definition of `member of the family unit' of the family head in subregulation 1.12(1).
This amendment also ensures that the definition of `member of the family unit' is consistent with the definition of dependent child in regulation 1.03 of Part 1 of the Principal Regulations. Regulation 1.03 provides, amongst other things, that the definition of dependent child does not include people who are married, regardless of their age.
Item [2] - Subparagraphs 1.12(6)(b)(vii) and (viii)
This item omits subparagraphs 1.12(6)(b)(vii) and (viii) from Part 1 of the Principal Regulations and is consistent with the omission of paragraph 1.12(1)(d) by these Regulations.
The purpose of this amendment is to ensure that a relative of a parent (or of a spouse of that parent) who has made a combined application with an applicant who has not turned 18 at the time of application, for a Distinguished Talent (Migrant) (Class AL) visa, must be single (that is must have never married, be widowed, divorced or separated) to satisfy that part of the definition of member of the family unit of the applicant in subregulation 1.12(6).
Item [3] - Subparagraphs 1.12(7)(b)(vii) and (viii)
This item omits subparagraphs 1.12(7)(b)(vii) and (viii) from Part 1 of the Regulations and is consistent with the omission of paragraph 1.12(1)(d) by these Regulations.
The purpose of this amendment is to ensure that a relative of a parent (or of a spouse of that parent) who has made a combined application with an applicant who has not turned 18 at the time of application, for a Distinguished Talent (Residence) (Class BX) visa, must be single (that is never married, be widowed, divorced or separated) to satisfy the definition of member of the family unit of the applicant in subregulation 1.12(7).
Schedule 6 - Amendments relating to visas for adopted children
Item [1] - Schedule 2, paragraph 102.211(2)(d)
This item amends paragraph 102.211(2)(d) of Schedule 2 to the Principal Regulations as a consequential amendment to the omission of paragraph 102.211(2)(e), by these Regulations.
Item [2] - Schedule 2, paragraph 102.211(2)(e)
This item omits paragraph 102.211(2)(e) from Schedule 2 to the Principal Regulations.
The purpose of the amendment is to remove a superfluous requirement from the visa assessment process. Paragraph 102.211(2)(d) of the Principal Regulations requires the adoptive parent to have lawfully acquired full and permanent parental rights by the adoption. These rights include the right to decide where the child shall live. Therefore the requirement for a competent authority in the overseas country to approve the departure of the child to Australia is unnecessary.
Item [3] - Schedule 2, subparagraph 102.211(3)(d)(ii)
This item amends subparagraph 102.211(3)(d)(ii) in Schedule 2 to the Principal Regulations as a consequential amendment to omission of paragraph 102.211(3)(e), by these Regulations.
Item [4] - Schedule 2, paragraph 102.211(3)(e)
This item omits paragraph 102.211(3)(e) from Schedule 2 to the Principal Regulations.
The purpose of this amendment is to remove the requirement, at the time of visa application, that a competent authority in the overseas country has approved the departure of the applicant either for adoption in Australia, or in the custody of the prospective adoptive parent or parents, as the case requires. This amendment operates with the amendments to subdivision 102.22 of Schedule 2 to the Principal Regulations by these Regulations, to enable adoption and visa processing to run concurrently.
Item [5] - Schedule 2, after clause 102.227
This item inserts new clause 102.227A in Schedule 2 to the Principal Regulations.
This amendment operates with the amendment made by these Regulations to paragraph 102.211(3)(e) in Schedule 2 to the Principal Regulations, to provide greater efficiency in the Subclass 102 (Adoption) visa application and assessment process. New clause 102.227A requires a competent authority in the overseas country to have approved, at the time of visa decision, the departure of the applicant for adoption in Australia, or the departure of the applicant in the custody of the prospective adoptive parent or parents. This criterion has been changed from a time of application to a time of decision requirement, to allow for more streamlined visa processing.
Item [6] - Schedule 2, paragraph 802.213(5)(d)
This item amends paragraph 802.213(5)(d) in Schedule 2 to the Principal Regulations as a consequential amendment to the amendment made to paragraph 802.213(5)(e), by these Regulations.
Item [7] - Schedule 2, paragraph 802.213(5)(e)
This item omits paragraph 802.213(5)(e) from Schedule 2 to the Principal Regulations.
The purpose of the amendment is to remove a superfluous requirement from the visa assessment process. Paragraph 802.213(5)(d) of the Principal Regulations requires the adoptive parent, or the adoptive parent and the adoptive parent's spouse, to have lawfully acquired full and permanent parental rights by the adoption. These rights include the right to decide where the child shall live. Therefore the requirement for a competent authority in the overseas country to have approved the departure of the child to Australia is unnecessary.
Schedule 7 - Amendments relating to assurance of support
Item [1] - Schedule 2, clause 881.311
Item [2] - Schedule 2, clause 882.311
These items amend clauses 881.311 and 882.311 of Schedule 2 to the Principal Regulations. Amended clauses 881.311 and 882.311 provide that a person seeking to satisfy the secondary criteria for the grant of a Subclass 881 (Skilled - Australian-sponsored Overseas Student) or 882 (Skilled - Designated Area-sponsored Overseas Student) visa, respectively, must be a member of the family unit of, and make a combined application with, a person who seeks to satisfy the primary criteria for the grant of either subclass of visa.
On 1 July 2004, amendments were made to Subclasses 881 and 882 which inserted new primary and secondary criteria to be satisfied at the time of decision which relate to assurances of support. The new criteria, clauses 881.222, 881.323, 882.223 and 882.323, require the Minister to be satisfied that the Secretary of the Department of Family and Community Service has accepted an assurance of support in relation to all applicants. Further amendments were made to Subdivisions 881.21 and 882.21 to remove the only primary criteria to be satisfied at the time of application, which previously related to assurances of support. However, necessary consequential amendments to the secondary criteria to be satisfied at the time of application were overlooked at that time. As a result, these criteria ceased to be relevant as they were contingent on there being primary criteria to be satisfied at the time of application.
The effect of the amendments to clauses 881.311 and 882.311 by these items is to ensure that persons seeking to satisfy the secondary criteria of either a Subclass 881 or 882 visa are not disadvantaged by being required to satisfy defective criteria, and impose less onerous criteria than those in place prior to the commencement of Schedule 2 to the Amendment Regulations. The retrospective effect of these amendments corresponds with transitional arrangements for the amendments to the Principal Regulations made by Schedule 2 to the Amendment Regulations.
Schedule 8 - Amendments relating to Student Guardian visas and applications for visas after MRT decisions
Part 1 - Amendments relating to Student Guardian visas
Item [1] - Schedule 2, Division 580.2, after the heading
This item inserts a new note in Division 580.2 of Schedule 2 to the Principal Regulations.
The new note explains that where multiple members of a family unit apply for a Subclass 580 (Student Guardian) visa, one member of the family unit must satisfy the primary criteria and the other members of the family unit need satisfy only the secondary criteria.
Item [2] - Schedule 2, subparagraph 580.226(1)(a)(ii)
This item amends subparagraph 580.226(1)(a)(ii) of Schedule 2 to the Principal Regulations by omitting the reference to "or a family applicant in relation to a person designated under regulation 2.07AO".
Prior to this amendment, an applicant or a family applicant for a Subclass 580 (Student Guardian) visa must satisfy the Minister that he or she has sufficient funds to support himself or herself and each member of the family unit of the applicant during their proposed stay in Australia.
The effect of the amendment made by this item is that family applicants for a Subclass 580 (Student Guardian) visa no longer need to independently satisfy the Minister that they have the financial capacity to support themselves and each member of the family unit of the applicant. Rather, it is intended that only a primary applicant for a Subclass 580 (Student Guardian) visa need satisfy the Minister as to financial capacity.
Item [3] - Schedule 2, sub-subparagraph 580.226(1)(a)(ii)(B)
This item amends sub-subparagraph 580.226(1)(a)(ii)(B) of Schedule 2 to the Principal Regulations by substituting the words "member of the family unit of the applicant" with the words "family applicant."
Prior to this amendment, an applicant or a family applicant for a Subclass 580 (Student Guardian) visa must satisfy the Minister that they have sufficient funds to support themselves and each member of the family unit of the applicant during their proposed stay in Australia.
As defined in Regulation 1.12, a person is a member of the family unit of an applicant for a Subclass 580 (Student Guardian) visa if the person is a spouse of the applicant, or a dependent child of the applicant, or of that spouse, who is unmarried and has not turned 18. A "family applicant" as referred to in sub-subparagraph 580.226(1)(a)(ii)(B) is a narrower term, referring to a member of the applicant's family unit who is also a visa applicant seeking to satisfy secondary criteria for the grant of a visa.
The purpose of this amendment is to relax the financial capacity requirement, such that an applicant for a Subclass 580 (Student Guardian) visa need only satisfy the Minister that they have the financial capacity to support themselves and each family applicant for a Subclass 580 (Student Guardian) visa. This amendment removes the need to satisfy the Minister that the primary applicant has the financial capacity to support members of the family unit who are not applying for a Subclass 580 (Student Guardian) visa.
Item [4] - Schedule 2, Division 580.3, after the heading
This item inserts a new note in Division 580.3 of Schedule 2 to the Principal Regulations.
The purpose of this amendment is to clarify that the secondary criteria for grant of a Subclass 580 (Student Guardian) visa are to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 580 (Student Guardian) visa.
Item [5] - Schedule 2, Subdivision 580.31, after the heading
This item inserts new clause 580.310 in Subdivision 580.31 of Schedule 2 to the Principal Regulations.
New clause 580.310 provides that if the application for a Subclass 580 (Student Guardian) visa is made outside Australia, an applicant seeking to satisfy the secondary criteria must be a member of the family unit of a person who is the holder of a Subclass 580 visa, or a person who satisfies the primary criteria in Subdivision 580.21.
The purpose of this amendment is to prescribe secondary criteria at time of application applicable to an applicant for a Subclass 580 (Student Guardian) visa who makes his or her application outside Australia.
Item [6] - Schedule 2, subclause 580.311(1)
This item amends subclause 580.311(1) of Schedule 2 to the Principal Regulations by inserting a reference to new subclause (4).
This amendment is consequential to the insertion of new subclause 580.311(4) of Schedule 2 to the Principal Regulations by these Regulations (see item [7] below).
Item [7] - Schedule 2, subclause 580.311(3)
This item substitutes subclause 580.311(3) of Schedule 2 to the Principal Regulations with new subclauses 580.311(3) and 580.311(4).
New subclause 580.311(3) provides that an applicant for a Subclass 580 (Student Guardian) visa satisfies the secondary criteria for the grant of the visa if:
• the applicant is not the holder of a substantive visa; and
• the applicant is a member of the family unit of a person who meets the requirements of subclause 580.211(2).
New subclause 580.311(4) provides that an applicant for a Subclass 580 (Student Guardian) visa satisfies the secondary criteria for the grant of the visa if:
• the applicant is not the holder of a substantive visa; and
• the applicant is a member of the family unit of a person who meets the requirements of subclause 580.211(3); and
• the applicant was a member of the family unit of the person at the time that person's visa ceased to be in effect.
The effect of the amendment is to remedy the incorrect repetition of the primary criteria for grant of a Subclass 580 (Student Guardian) visa in subclause 580.311(3). The purpose of the amendment to subclause 580.311(3) by this item is to ensure that persons seeking to satisfy the secondary criteria for grant of a Subclass 580 (Student Guardian) visa are not disadvantaged by being required to satisfy more onerous criteria than is necessary for a secondary applicant. The correct secondary criteria for grant of a Subclass 580 (Student Guardian) visa are inserted instead.
Item [8] - Schedule 8, paragraph 8535(c)
This item makes a minor technical amendment to paragraph 8535(c) of Schedule 8 to the Principal Regulations.
The purpose of the amendment is to omit the incorrect reference to "student visa" in paragraph 8535(c) of Schedule 8 to the Principal Regulations. Prior to this amendment, the paragraph refers to a criterion to be satisfied for the grant of a "student visa", including clause 580.229, which is a criterion for the grant of a Subclass 580 (Student Guardian) visa. Subclass 580 (Student Guardian) visa is not a "student visa" as defined in Regulation 1.03. A correct reference to "Student (Temporary) (Class TU) visa" is inserted instead.
Item [9] - Further amendments - Schedule 2, Part 580
This item makes a number of minor technical amendments to Part 580 of Schedule 2 to the Principal Regulations for the purpose of consistency of format and accuracy throughout the Principal Regulations.
In subparagraph 580.211(2)(d)(ii), sub-subparagraph 580.227(c)(iii)(B) and subparagraph 580.311(2)(d)(ii), the word "or" is omitted after "Executive;" for the purpose of consistency of format throughout the Principal Regulations.
In subclause 580.223(2A) the incorrect reference to "subclause (2)(d)" is substituted with a correct reference to "paragraph (2)(d)".
In paragraph 580.323(a) the incorrect reference to "subclause (2A)" is substituted with a correct reference to "subclause 580.223(2A)".
Part 2 - Amendments relating to applications for visas after MRT decisions
Item [10] - Schedule 1, after paragraph 1212A(3)(d)
This item amends subitem 1212A(3) of Schedule 1 to the Principal Regulations by inserting a new paragraph (da).
New paragraph 1212A(3)(da) provides that an applicant for a Graduate - Skilled (Temporary) (Class UQ) visa:
• who does not hold a substantive visa; and
• whose last substantive visa has been cancelled; and
• whose last substantive visa was a visa other than the visas listed in paragraph 1212A(3)(d) at the time the visa was cancelled; and
• who has had the visa cancellation decision, or the decision not to revoke the visa cancellation, set aside and substituted by the Migration Review Tribunal;
is taken to have complied with paragraph 1212A(3)(d) and is able to make a valid visa application, provided that the application is lodged within 28 days after the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the MRT decision.
Prior to this amendment, in accordance with paragraph 1212A(3)(d) of Schedule 1 to the Principal Regulations, a person cannot make a valid application for a Graduate-Skilled (Temporary) (Class UQ) visa without being the holder of a certain substantive visa. Where the MRT has made a decision to set aside and substitute a visa cancellation decision or a decision not to revoke a visa cancellation more than 28 days after an applicant's visa would have naturally ceased, that applicant will not be able to meet the requirements of this paragraph.
The purpose of this amendment is to ensure that where the MRT sets aside and substitutes a decision to cancel a visa, or a decision not to revoke a visa cancellation, later than 28 days after the substantive visa has naturally ceased, the visa holder will still be able to make a valid application for grant of a Graduate - Skilled (Temporary) (Class UQ) visa, provided that the application is lodged within 28 days after the applicant is taken to have been notified of the MRT decision.
Item [11] - Schedule 1, paragraph 1212A(3)(e)
The item substitutes paragraph 1212A(3)(e) of Schedule 1 to the Principal Regulations with new paragraphs 1212A(3)(e) and (ea).
New paragraph 1212A(3)(e) provides that if the substantive visa held by an applicant for a Graduate - Skilled (Temporary) (Class UQ) visa who complies with paragraph 1212A(3)(d) is not a Subclass 560, 562, 563, 572, 573 or 574 visa of the kind mentioned in 1212A(3)(d), the applicant must have held a visa of that kind at some time in the 6 months immediately before making the application for a Graduate - Skilled (Temporary) (Class UQ) visa.
New paragraph 1212A(3)(ea) provides that if the substantive visa held by an applicant for a Graduate - Skilled (Temporary) (Class UQ) visa who complies with paragraph 1212A(3)(da) is not a Subclass 560, 562, 563, 572, 573 or 574 visa of the kind mentioned in 1212A(3)(d), the applicant must have held a visa of that kind at some time in the 6 months immediately before that visa was cancelled.
Prior to this amendment, in accordance with paragraph 1212A(3)(e) of Schedule 1 to the Principal Regulations, a person cannot make a valid application for a Graduate-Skilled (Temporary) (Class UQ) visa without having held a certain type of visa within the 6 months immediately before making the application. Where the MRT has made a decision to set aside and substitute a visa cancellation decision, or a decision not to revoke a visa cancellation, later than 6 months after an applicant's visa would have naturally ceased, that applicant will not be able to meet the requirements of this paragraph.
The purpose of this amendment is to ensure that where the MRT sets aside and substitutes a decision to cancel a visa, or a decision not to revoke a visa cancellation, later than 6 months after the applicant held a certain kind of visa required in paragraph 1212A(3)(e), the visa holder will still be able to meet the requirements of this paragraph and make a valid application for a Graduate - Skilled (Temporary) (Class UQ) visa, provided that the applicant held that certain kind of visa within the 6 months immediately before the visa was cancelled.
It is also intended that this amendment will clarify that new paragraphs 1212A(3)(e) and (ea) impose a further requirement on applicants, namely that if they do not hold a visa of a certain Subclass, they must have held a visa of that kind at some time in the 6 months immediately before applying for a Graduate-Skilled (Temporary) (Class UQ) visa, or at some time in the 6 months immediately before their other substantive visa was cancelled, in order to make a valid application.
Item [12] - Schedule 2, paragraph 580.211(3)(c)
This item substitutes paragraph 580.211(3)(c) of Schedule 2 to the Principal Regulations with new paragraph 580.211(3)(c).
New paragraph 580.211(3)(c) provides that an application for a Subclass 580 (Student Guardian) visa must be made:
• within 28 days (or within such period specified by Gazette Notice) after the day when the applicant's last substantive visa ceased to be in effect; or
• if that last substantive visa was cancelled, and the MRT has made a decision to set aside and substitute the cancellation decision - within 28 days after the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
Prior to this amendment, paragraph 580.311(3)(c) provides that an application for a Subclass 580 (Student Guardian) visa must be made within 28 days (or within such period specified by Gazette Notice) after the day when the applicant's last substantive visa ceased to be in effect. Where the MRT has made a decision to set aside and substitute a visa cancellation more than 28 days after an applicant's visa would have naturally ceased, that applicant will not be able to meet the requirements of this paragraph.
The purpose of this amendment is to ensure that where the MRT sets aside and substitutes a decision to cancel a visa later than 28 days after the substantive visa has naturally ceased, the visa holder will still be able to make a valid application for grant of a Subclass 580 (Student Guardian) visa, provided that the application is lodged within 28 days after the applicant is taken to have been notified of the MRT decision.
Item [13] - Schedule 3, subparagraph 3001(2)(c)(iv)
This item amends subparagraph 3001(2)(c)(iv) of Schedule 3 to the Principal Regulations. This amendment is consequential to the insertion of new paragraph (d) in subclause 3001(2) of Schedule 3 to the Principal Regulations, by these Regulations (see item [14] below).
Item [14] - Schedule 3, after paragraph 3001(2)(c)
This item amends subclause 3001(2) of Schedule 3 to the Principal Regulations by inserting new paragraph 3001(2)(d).
New paragraph 3001(2)(d) provides that for applicants who have had the MRT set aside and substitute a decision to cancel their last substantive visa, or a decision not to revoke a visa cancellation, the relevant day for the purpose of assessing whether an application is validly made, is 28 days after the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the MRT decision.
The purpose of this amendment is to ensure that where the MRT sets aside and substitutes a decision to cancel a visa, or a decision not to revoke a visa cancellation, later than 28 days after the substantive visa has naturally ceased, the visa applicant will still be able to meet criterion 3001, provided that the application is lodged within 28 days after the applicant is taken to have been notified of the MRT decision.
Item [15] - Further amendments - Schedule 2
This item amends the following paragraphs of Schedule 2 to the Principal Regulations by substituting the text of the following paragraphs with new text:
• paragraph 570.211(3)(c)
• paragraph 571.211(3)(c)
• paragraph 572.211(3)(c)
• paragraph 573.211(3)(c)
• paragraph 574.211(3)(c)
• paragraph 575.211(3)(c)
• paragraph 576.211(3)(c)
These new paragraphs provide that an applicant meets the criterion if the application is made:
• within 28 days (or within such period specified by Gazette Notice) after the day when that last substantive visa ceased to be in effect; or
• if that last substantive visa was cancelled, and the MRT has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
The relevant visa subclasses are:
• Subclass 570 (Independent ELICOS Sector)
• Subclass 571 (Schools Sector)
• Subclass 572 (Vocational Education and Training Sector)
• Subclass 573 (Higher Education Sector)
• Subclass 574 (Postgraduate Research Sector)
• Subclass 575 (Non-Award Sector)
• Subclass 576 (AusAID or Defence Sector)
Prior to this amendment, paragraphs 570.211(3)(c), 571.211(3)(c), 572.211(3)(c), 573.211(3)(c), 574.211(3)(c), 575.211(3)(c) and 576.211(3)(c) provide that an application for the relevant visa subclass must be made within 28 days (or within such period specified by Gazette Notice) after the day when the applicant's last substantive visa ceased to be in effect. Where the MRT has made a decision to set aside and substitute a visa cancellation more than 28 days after an applicant's visa would have naturally ceased, that applicant will not be able to meet the requirements of these paragraphs.
The purpose of these amendments is to ensure that where the MRT sets aside and substitutes a decision to cancel a visa, or a decision not to revoke a visa cancellation, later than 28 days after the substantive visa has naturally ceased, the visa holder will still be able to make a valid visa application for the relevant subclasses listed above, provided that the application is lodged within 28 days after the applicant is taken to have been notified of the MRT decision.