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MIGRATION AMENDMENT REGULATIONS 2005 (NO. 1) (SLI NO 54 OF 2005)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 54

 

Issued by the Minister for Immigration and

Multicultural and Indigenous Affairs

 

Migration Act 1958

 

Migration Amendment Regulations 2005 (No. 1)

 

 

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: make various amendments to Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) and Labour Agreement (LA) visas; amend the definition of “skilled occupation”; amend the definition of “Internet application”; allow applicants for certain Partner visas to use electronic application forms; and add an additional study related condition to Sponsored Family Visitor visas.

 

In particular, the Regulations amend the Principal Regulations to:

 

·        implement changes to the ENS visas to streamline and improve the effectiveness of skill level requirements, in particular by:

-         removing labour market testing requirements and introducing lists, to be specified by Gazette Notice, of  skilled occupations and minimum salary levels with which a proposed nominated position must comply; and

-         requiring visa applicants either to have worked full-time in the nominated occupation in Australia while holding a specified temporary visa for at least 2 years immediately before making their application, or to be nominated to fill a highly paid senior executive position with a salary of at least a specified minimum level, or to have their skills assessed as suitable by an independent assessing authority and have 3 years experience in the nominated occupation; and

-         requiring that visa applicants must have been working full-time in Australia in the applicable occupation for at least 2 years immediately before making the application, and working full-time directly for the nominating employer in that occupation for at least 1 year immediately before making the application;

·        enhance the integrity of ENS and RSMS visas, in particular by:

-         requiring employers to be actively and lawfully operating in Australia; and

-         requiring employers to have a satisfactory record of compliance with immigration law and relevant workplace relations law;

·        restructure the regulations to make clearer the respective requirements to be met by employer nominations under the ENS, RSMS and LA arrangements and those to be met by the related visa applicants, and to achieve greater consistency in the requirements to be met by visa applicants who are offshore and those to be met by applicants who are in Australia;

·        clarify the operation and validity of the “Sydney and Selected Areas Skilled Shortage List”, which sets out the occupations that are “skilled occupations” for certain skilled visa applicants, whose sponsor resides in Sydney or a selected area of NSW;

·        enable applicants for certain classes of Partner visa to complete a new interactive electronic form using the Internet; and

·        preclude holders of Sponsored Family Visitor visas from engaging in any study or training for more than 3 months while they are in Australia.

Details of the Regulations are set out in Attachment B.

 

The Regulations reflect regular changes that are made to the Principal Regulations. These are changes that give effect to the ongoing update of immigration policy and regulations.

 

The Regulations commence on 2 April 2005. This commencement date coincides with the initiation of systems requirements necessary to allow the implementation of these Regulations.

 

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 

0501986A-050223ZNT


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:

 

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

·        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;

·        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;

·        subsection 93(1) of the Act, which provides that the Minister shall make an assessment of an applicant’s points score by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant;

·        section 140B of the Act, which provides that the regulations may provide that sponsorship by an approved sponsor is a criterion for a visa of a prescribed kind (however described), and that this criterion is in addition to any other criteria for the visa that may be prescribed or set out under any other provision of the Act, or of any other Act;

·        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);

·        subsection 140C(2) of the Act, which provides that the regulations may provide that it is a criterion for a valid application for a prescribed kind of visa that the visa applicant’s proposed sponsor has applied to be an approved sponsor at, or before, the time the visa application is made;

·        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; and

·        section 495 of the Act, which provides that the Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.


ATTACHMENT B

 

Details of the Migration Amendment Regulations 2005 (No. 1)

Regulation 1 – Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2005 (No. 1).

Regulation 2 – Commencement

These Regulations commence on 2 April 2005. This commencement date coincides with the initiation of systems requirements necessary to allow the implementation of these Regulations.

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 Schedule 1 apply in relation to:

·        an application made on or after 2 April 2005 for approval of a nominated position; and

·        an application for a visa made on or after 2 April 2005.

Subregulations 4(2), (3) and (4) provide that the amendments made by Schedules 2, 3 and 4 apply to an application for a visa made on or after 2 April 2005.

Schedule 1 – Amendments relating to approval of nominated positions and related visas

Item [1] – Subregulation 5.19(1B)

This item substitutes subregulation 5.19(1B) of Part 5 of the Principal Regulations with new subregulation 5.19(1B). New subregulation 5.19(1B) provides that the Minister may, in writing, approve or reject an application for approval of a nominated position. This amendment removes the requirement for the Minister to approve or reject an application ‘by signed instrument’. It is sufficient for approval or rejection to be ‘in writing’.

Item [2] – Subregulation 5.19(1C)

This item substitutes subregulation 5.19(1C) of Part 5 of the Principal Regulations with new subregulation 5.19(1C). The purpose of this amendment is to clarify the circumstances in which the Minister must approve or reject an application for approval of a nominated position as an approved appointment, made in accordance with subregulation 5.19(1A).

New paragraph 5.19(1C)(a) provides that the Minister must approve an application for approval of a nominated position if the requirements of the paragraph are met.

New subparagraph 5.19(1C)(a)(i) requires that the application must be made in accordance with subregulation 5.19(1A).

New subparagraph 5.19(1C)(a)(ii) provides that if an application is made using form 785 (relating to the Employer Nomination Scheme), the requirements of subregulation 5.19(2) must be met.  If the application is made using approved form 1054 (relating to the Regional Sponsored Migration Scheme), the requirements of subregulation 5.19(4) must be met. 

New subparagraph 5.19(1C)(a)(iii) requires that the employer must not be the subject of an action that is described in section 140L of the Act. Section 140L relates to the cancellation or barring of sponsorship for certain visas where sponsors have breached their sponsorship undertakings.

New paragraph 5.19(1C)(b) provides that the Minister must reject an application if any of the requirements of paragraph 5.19(1C)(a) is not met.

Item [3] – Paragraph 5.19(1D)(a)

This item substitutes paragraph 5.19(1D)(a) of Part 5 of the Principal Regulations with new paragraph 5.19(1D)(a). The new paragraph 5.19(1D)(a) requires the Minister to give an applicant for approval of a nominated position a copy of the written approval or rejection of the application. Previously paragraph 5.19(1D)(a) required the applicant to be given a copy of the ‘instrument’ approving or rejecting the application. This amendment is consequential upon the amendment made to subregulation 5.19(1B) by these Regulations, requiring approval or rejection of the application to be ‘in writing’ rather than ‘by signed instrument’.

Item [4] – Subregulations 5.19(2), (3) and (3A)

This item substitutes subregulations 5.19(2), (3) and (3A) of Part 5 of the Principal Regulations with new subregulation 5.19(2).

This amendment has two effects:

·        New subregulation 5.19(2) makes changes to the requirements to be met by an application for approval of a nominated position made on form 785 under the Employment Nomination Scheme (‘the ENS’).  These changes are intended to enhance the integrity of the ENS.

·        Subregulations 5.19(3) and 5.19(3A) and related paragraph 5.19(2)(b) are omitted from regulation 5.19.  The omitted subregulations related to requirements regarding skill levels to be met by visa applicants seeking to fill a nominated position, rather than to requirements to be met for approval of the nominated position itself. The intention is to leave in regulation 5.19 only the requirements to be satisfied for approval of a nominated position.  The criteria to be satisfied by an applicant for a visa on the basis of filling the nominated position, formerly in subregulations 5.19(3) and 5.19(3A), are relocated (with certain amendments) by these Regulations to the relevant subclasses of Schedule 2 to the Principal Regulations. If the applicant is outside Australia, the relevant subclasses are:

Subclass 119 (Regional Sponsored Migration Scheme);

Subclass 120 (Labour Agreement); and

Subclass 121 (Employer Nomination).

 

If the applicant is in Australia, the relevant subclasses are:

 

Subclass 855 (Labour Agreement); and

Subclass 856 (Employer Nomination Scheme); and

Subclass 857 (Regional Sponsored Migration Scheme).

See the notes on the amendments to the relevant provisions, below.

 

Details of new subregulation 5.19(2) are as follows:

 

New paragraph 5.19(2)(a) requires the employer’s business to be ‘actively and lawfully operating’ in Australia, and the business to be operated by the employer.  Previously, the business was required only to be ‘located’ in Australia.   The effect of this amendment is that the business must have an active and lawful presence in Australia.  

 

New paragraph 5.19(2)(b) inserts a requirement that the Minister must be satisfied that nothing adverse is known to the Department about the business background of the employer or officers of other entities connected with the employer.   Adverse information could relate to the employer’s business history in relation to, for example, corporations law, trade practices law, taxation law or criminal law.

 

New paragraph 5.19(2)(c) inserts a requirement that the Minister must be satisfied  that the employer has a satisfactory record of compliance with Australian immigration laws.  This could relate to, for example, any previous sponsorship by the employer of overseas workers or any employment of non-citizens in breach of their visa conditions.

 

New paragraph 5.19(2)(d) inserts a requirement that the Minister must be satisfied that the employer has a satisfactory record of compliance with the workplace relations laws of the Commonwealth and any relevant State or Territory.

 

New paragraph 5.19(2)(e) retains an existing requirement that the Minister must be satisfied that the employer has made, and will continue to make, adequate provision for training of employees within the business; or, if the business is newly established, that adequate provision is being made for future training of employees.

 

New paragraph 5.19(2)(f) requires the appointment to be for full-time employment for at least 3 years, with no express exclusion of renewal. This provision retains a requirement of previous subregulation 5.19(2), but omits a reference to the appointment being ‘for a fixed term’ of at least 3 years. It is not the intention that the appointment must necessarily be for a ‘fixed term’. For example, it can be open-ended, provided it is for at least 3 years and does not specifically preclude the employment continuing beyond that period.

 

New paragraph 5.19(2)(g) requires that the employee’s working conditions must be no less favourable than working conditions provided for under relevant Australian legislation and awards. New paragraph 5.19(2)(g) changes the previous requirement that the employment must be “in accordance with [Australian legislative and award] standards for wages and working conditions”. This amendment makes it clear that working conditions can equal or exceed those standards. The reference to wages is no longer necessary in this paragraph as payment levels required in the nominated position will now be set by levels specified for the relevant occupation and location in a Gazette Notice under new paragraph 5.19(2)(i), inserted in the Principal Regulations by these Regulations. See further notes on the new paragraph 5.19(2)(i), below.

 

New paragraph 5.19(2)(h) inserts a requirement that the tasks of the nominated position must correspond to an occupation specified in a Gazette Notice, and must be carried out in a location specified in the Gazette Notice for that occupation. In each case, the relevant Gazette Notice is that in force when the application for approval of the nominated position is made. The effect of this amendment is to remove the previous labour market testing requirement (formerly in the old paragraph 5.19(2)(e)) which was found to be ineffective and costly to prospective employers. The new provisions will allow the introduction of a list of acceptable skilled occupations and target locations where employees in those occupations are required. 

 

New paragraph 5.19(2)(i) inserts a requirement that the employee must be paid a salary in the nominated position that is at least equal to the salary specified in a Gazette Notice for the occupation in the particular location. The relevant Gazette Notice is that in force at the time the application for approval of the nominated position is made. This provision allows the introduction of minimum salary levels which may vary according to location, rather than being tied to uniform award levels as under the previous arrangements. For instance, higher salary levels may be specified for certain occupations in particular locations such as Sydney. 

 

Item [5] – Subparagraph 5.19(4)(a)(i)

This item substitutes subparagraph 5.19(4)(a)(i) of Part 5 of the Principal Regulations with new subparagraph 5.19(4)(a)(i), which requires a business seeking approval of a nominated position under the Regional Sponsored Migration Scheme (‘the RSMS’) to be actively and lawfully operating in regional Australia.

Previously, a business was required only to be located in Australia. The effect of this amendment is that the business must have an active and lawful presence in regional Australia. The term “regional Australia” is defined in the new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations. 

 

Item [6] – Sub-subparagraph 5.19(4)(b)(i)(B)

This item makes a technical amendment to sub-subparagraph 5.19(4)(b)(i)(B) of Part 5 of the Principal Regulations, consequential upon the insertion of new sub-subparagraph 5.19(4)(b)(i)(C) by these Regulations.

 

Item [7] – After sub-subparagraph 5.19(4)(b)(i)(B)

This item inserts new sub-subparagraph 5.19(4)(b)(i)(C) in Part 5 of the Principal Regulations.

 

New sub-subparagraph 5.19(4)(b)(i)(C) imposes a new requirement that an appointment to which an application for approval of a nominated position under the RSMS relates must be located in regional Australia. The term “regional Australia” is defined in the new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations. 

 

Item [8] – Sub-subparagraph 5.19(4)(b)(ii)(A)

This item substitutes sub-subparagraph 5.19(4)(b)(ii)(A) of Part 5 of the Principal Regulations with new sub-subparagraph 5.19(4)(b)(ii)(A).

The effect of new sub-subparagraph 5.19(4)(b)(ii)(A) is that an appointment under an employer nomination relating to a person designated under regulation 2.07AO may also provide continuing fulltime employment. This is an alternative to the existing requirement that the appointment provide seasonal employment that will continue.

 

Item [9] – Sub-subparagraph 5.19(4)(b)(ii)(B)

This item amends sub-subparagraph 5.19(4)(b)(ii)(B) of Part 5 of the Principal Regulations by inserting the words “in regional Australia” after the word “undertaken”.

The effect of this amendment is that for approval of an employer nomination under the RSMS for an appointment relating to a person designated under regulation 2.07AO, the appointment must relate to employment undertaken by the person over the previous 12 months in regional Australia, rather than anywhere in Australia as previously required. The term “regional Australia” is defined in new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations. 

 

Item [10] – After sub-subparagraph 5.19(4)(b)(ii)(B)

This item inserts new sub-subparagraph 5.19(4)(b)(ii)(C) in Part 5 of the Principal Regulations.

 

New sub-subparagraph 5.19(4)(b)(ii)(C) imposes a new requirement that an appointment which is the subject of an application for approval of a nominated position under the RSMS, where the appointment relates to person designated under regulation 2.07AO, must be located in regional Australia. The term ‘regional Australia’ is defined in new subregulation 5.19(5), inserted in the Principal Regulations by these Regulations. 

 

Item [11] – Paragraph 5.19(4)(ca)

This item omits paragraph 5.19(4)(ca) of Part 5 of the Principal Regulations.

 

Paragraph 5.19(4)(ca) related to qualifications to be held by an applicant for a visa on the basis of taking up an appointment under an employer nomination approved under the RSMS. This requirement is relocated to the relevant Subclasses 119 (Regional Sponsored Migration Scheme - onshore) and 857 (Regional Sponsored Migration Scheme – offshore) in Schedule 2 to the Principal Regulations, by amendments made by these Regulations.

 

Item [12] – Paragraph 5.19(4)(e)

This item substitutes paragraph 5.19(4)(e) of Part 5 of the Principal Regulations with new paragraph 5.19(4)(e), and in addition inserts new paragraphs 5.19(4)(f), (g) and (h) in Part 5 of the Principal Regulations.

 

New paragraph 5.19(4)(e) retains the requirement of the previous paragraph 5.19(4)(e) that a body specified in a Gazette Notice must certify that the employer nomination meets the requirements of paragraphs 5.19(4)(a), (b) and (c).

 

New paragraphs 5.19(4)(f), (g) and (h) are additional requirements to be met for approval of a nominated position under the RSMS. These requirements are intended to enhance the integrity of the RSMS in the same way as the corresponding new paragraphs 5.19(2)(b), (c) and (d), inserted in Part 5 of the Principal Regulations by these Regulations, are designed to enhance the integrity of the ENS. For further details, please see the notes on those paragraphs, above.

 

Item [13] – After subregulation 5.19(4)

This item inserts new subregulation 5.19(5) in Part 5 of the Principal Regulations.

 

The purpose of the new subregulation 5.19(5) is to define the term “regional Australia” for the purposes of regulation 5.19 as amended by these Regulations. The term is used in subparagraph 5.19(4)(a)(i), sub-subparagraph 5.19(4)(b)(i)(B), new sub-subparagraph 5.19(4)(b)(i)(C), sub-subparagraph 5.19(4)(b)(ii)(A), sub-subparagraph 5.19(4)(b)(ii)(B) and new sub-subparagraph 5.19(4)(b)(ii)(C) following amendments made by these Regulations. The term “regional Australia is defined as meaning a part of Australia specified by Gazette Notice for the purposes of the definition in new subregulation 5.19(5).   

 

Item [14] – Schedule 1, paragraph 1114(3)(a)

This item substitutes paragraph 1114(3)(a) of Schedule 1 to the Principal Regulations with new paragraph 1114(3)(a).

 

New paragraph 1114(3)(a) requires an application for an Employer Nomination (Migrant) (Class AN) visa to be made in Australia, but not in immigration clearance. Previously, the application was required to be made outside Australia. An applicant who is overseas will be required to send the application to the office of the department in Australia where the application for approval of the nominated position was made. Efficiencies in client service will be gained by requiring the employer nomination application and the visa application to be made at and processed by the one office onshore.

 

Item [15] – Schedule 1, paragraph 1121(3)(a)

This item substitutes paragraph 1121(3)(a) of Schedule 1 to the Principal Regulations with new paragraph 1121(3)(a).

 

New paragraph 1121(3)(a) requires an application for a Labour Agreement (Migrant) (Class AU) visa to be made in Australia, but not in immigration clearance. Previously, the application was required to be made outside Australia. An applicant who is overseas will be required to send the application to the office of the department in Australia where the application for approval of the nominated position was made. Efficiencies in client service will be gained by requiring the employer nomination application and the visa application to be made at and processed by the one office onshore.

 

Item [16] – Schedule 2, Division 119.1

This item substitutes Division 119.1 of Schedule 2 to the Principal Regulations with new Division 119.1.

 

New Division 119.1 includes new clause 119.111, which defines the term “regional Australia” for the purposes of Part 119 to have the same meaning as in regulation 5.19 of the Principal Regulations. This refers to the definition of “regional Australia in new subregulation 5.19(5), inserted in Part 5 of the Principal Regulations by these Regulations.

New Division 119.1 also includes two notes. Note 1 refers readers to regulation 5.19 for the meaning of “approved appointment”. Note 2 refers readers to regulation 5.17 for the meaning of “functional English”. New Note 2 corrects the note to the previous Division 119.1 which referred incorrectly to the term “vocational English” which is not used in Part 119.

 

Item [17] – Schedule 2, subclause 119.211(1)

This item substitutes subclause 119.211(1) of Schedule 2 to the Principal Regulations with new subclause 119.211(1).

 

New subclause 119.211(1) clarifies the requirement that at the time of application, an applicant for a Subclass 119 (Regional Sponsored Migration Scheme) visa must have been nominated by an employer in accordance with subregulation 5.19(4), that is, under the requirements of the RSMS, for an appointment in the business of that employer.

 

Item [18] – Schedule 2, subclauses 119.211(3), (4) and (5)

This item substitutes subclauses 119.211(3), (4) and (5) of Schedule 2 to the Principal Regulations with new subclauses 119.211(3) and (4).

 

New subclause 119.211(3) clarifies the intention that any one, or all, of the three requirements in the subclause (that the applicant must not have turned 45, must have functional English, and must have a diploma or higher qualification relevant to the appointment) must be met unless exceptional circumstances apply. Under the previous subclause 119.211(4), the whole of subclause 119.211(3) did not apply to an applicant if the appointment was exceptional. Guidelines as to what constitutes “exceptional circumstances” in relation to the non-application of any one, or all, of the requirements in the new subclause 119.211(3) will be set out in policy. The previous subclause 119.211(4) is now omitted as it is redundant following the amendment made to subclause 119.211(3) by these Regulations.

 

New subclause 119.211(4) retains the requirement of the previous subclause 119.211(5) that, at the time of application, the applicant must be, or must be eligible to become, the holder of a licence, the holder of registration, or a member of a particular professional body, if it is mandatory in Australia to hold a qualification of that type to perform tasks of the kind to be performed in the nominated position. The types of qualifications to be held are listed in new paragraphs 119.211(4)(a), (b) and (c) as the old subregulation 5.19(3A), to which the omitted subclause 119.211(5) previously referred for a description of the types of qualifications required to be held, is omitted by these Regulations.    

 

Item [19] – Schedule 2, clause 119.221

This item substitutes clause 119.221 of Schedule 2 to the Principal Regulations with new clause 119.221.

 

New clause 119.221 requires that at the time of deciding an application for a Subclass 119 (Regional Sponsored Migration Scheme) visa, the appointment mentioned in subclause 119.211(1) must be approved, must not have been withdrawn, must continue to satisfy the criteria for approval, and must still be available to the applicant. A new note refers readers to regulation 5.19 for the criteria for approval of the appointment. New clause 119.221 expands on the requirements of the old clause 119.221 which required only that the appointment be approved at the time of decision. This amendment enhances the integrity of the RSMS by ensuring that the appointment must remain genuinely available to the applicant and the employer must continue to be actively and lawfully operating with a record of compliance with immigration and workplace relations law.

 

Item [20] – Schedule 2, after clause 119.311

This item inserts new clause 119.312 in Schedule 2 to the Principal Regulations. New clause 119.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a Subclass 119 (Regional Sponsored Migration Scheme) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

10

 

Item [21] – Schedule 2, Division 120.1, note

This item substitutes the note in Division 120.1 of Schedule 2 to the Principal Regulations with 3 new notes.

 

The new notes advise readers that the meanings of “IASS agreement”, “labour agreement” and “RHQ agreement” are to be found in regulations 1.16B, 1.03 and 1.16A of the Principal Regulations, respectively.

 

Item [22] – Schedule 2, subclauses 120.211(2) to (5)

This item substitutes subclauses 120.211(2), (3), (4) and (5) of Schedule 2 to the Principal Regulations with new subclauses 120.211(2), (3), (4) and (5).

 

New subclause 120.211(2) sets out the criteria to be satisfied at the time of application by a person applying for a Subclass 120 (Labour Agreement) visa who seeks to enter Australia to work in accordance with a labour agreement. The applicant must have been nominated to work in Australia in accordance with a labour agreement that is in effect by an employer who is a party to the labour agreement, must have qualifications and experience suitable for the position, and must (unless exceptional circumstances apply) be aged less than 45 years. The requirements of the labour agreement must also have been met in relation to the application.

New subclause 120.211(3) sets out the criteria to be satisfied at the time of application by a person applying for a Subclass 120 (Labour Agreement) visa who seeks to enter Australia to work in accordance with an RHQ agreement. The applicant must have been nominated to work in Australia, in accordance with an RHQ agreement that is in effect, by an employer who is a party to the RHQ agreement, and the requirements of the RHQ agreement must have been met in relation to the application.

 

New subclause 120.211(4) sets out the criteria to be satisfied at the time of application by a person applying for a Subclass 120 (Labour Agreement) visa who seeks to enter Australia to work in accordance with an IASS agreement. The applicant must have been nominated to work in Australia, in accordance with an IASS agreement that is in effect, by an employer who is a party to the IASS agreement, must have qualifications and experience suitable for the position, and must (unless exceptional circumstances apply) be aged less than 45 years. The requirements of the IASS agreement must also have been met in relation to the application.

 

New subclause 120.211(5) sets out the criteria to be satisfied at the time of application by a person who is taken under regulation 2.08C to have applied for a Labour Agreement (Migrant) (Class AU) visa and who seeks to enter Australia to work in accordance with a labour agreement. The applicant must have been nominated to work in Australia, in accordance with a labour agreement that is in effect, by an employer who is a party to the labour agreement, and must have qualifications and experience suitable for the position. The applicant must have been aged less than 45 years at the time of making the application for an Independent (Migrant) (Class AT) visa, a Skilled – Independent (Migrant) (Class BN) visa or a Skill Matching (Migrant) (Class BR) visa which resulted in the deemed application for a Labour Agreement (Migrant) (Class AU) visa in accordance with regulation 2.08C. The requirements of the labour agreement must also have been met in relation to the application.

 

Item [23] – Schedule 2, after clause 120.225

This item inserts new clause 120.226 in Schedule 2 to the Principal Regulations. At the time of decision, an applicant for a Subclass 120 (Labour Agreement) visa is required to meet the requirements of new subclause 120.226(2), (3) or (4). The effect of the new subclauses is that the employer mentioned in clause 120.211 as relevant to the particular application at the time of application must, at the time of decision, be a party to a labour agreement, RHQ agreement or IASS agreement, as relevant at the time of application, that is in effect. The nomination mentioned in clause 120.211 as relevant to the particular application at the time of application, must, at the time of decision, also have been approved and not have been withdrawn. In addition, the relevant position must still be available to the applicant. These new requirements ensure that the employer continues to be a party to a relevant agreement and that the position is genuine and remains open and available to the applicant.

 

Item [24] – Schedule 2, after clause 120.311

This item inserts new clause 120.312 in Schedule 2 to the Principal Regulations. New clause 120.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a Subclass 120 (Labour Agreement) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

 

Item [25] – Schedule 2, clause 121.211

This item substitutes clause 121.211 of Schedule 2 to the Principal Regulations with new clause 121.211. The purpose of new clause 121.211 is to amend the requirements to be met by an applicant for a Subclass 121 (Employer Nomination) visa at the time of application. 

 

New paragraph 121.211(a) requires the applicant to have been nominated by an employer in accordance with subregulation 5.19(2) under the Employer Nomination Scheme, for an appointment in the business of the nominating employer.

 

New paragraph 121.211(b) introduces new requirements relating to the experience and skill levels of the applicant, consequential to the repeal of subregulations 5.19(3) and (3A) (which set out the meaning of “highly skilled person”) of Part 5 of the Principal Regulations by these Regulations. The new requirements are that either:

·        an assessing authority (specified in a Gazette Notice made by the Minister as the assessing authority for the occupation to which the appointment relates) has assessed the applicant’s skills as suitable and, unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application (information as to what would constitute “exceptional circumstances” will be provided in policy guidelines); or

·        the applicant will be paid a salary in the position that is at least the amount of salary specified in a Gazette Notice for this provision.

New paragraph 121.211(c) requires that, unless exceptional circumstances apply, the applicant has not turned 45 and has vocational English. An applicant may be required to meet both, either or neither of these requirements, depending upon any exceptional circumstances that may exist. Guidance as to what constitutes “exceptional circumstances” will be provided in policy guidelines.

 

Item [26] – Schedule 2, after clause 121.212

This item inserts new clause 121.213 in Schedule 2 to the Principal Regulations.

 

New clause 121.213 requires that, at the time of application for a Subclass 121 (Employer Nomination) visa, if it is mandatory in Australia that to perform tasks of the kind to be performed in the nominated position a person must be the holder of a licence, the holder of registration, or a member of a particular professional body, the applicant must have, or be eligible to obtain, the relevant licence, registration or membership. The types of qualifications required to be held are listed in new clause 121.213 following the omission of subregulation 5.19(3A) of Part 5 of the Principal Regulations, by these Regulations.

 

Item [27] – Schedule 2, clause 121.221

This item substitutes clause 121.221 of Schedule 2 to the Principal Regulations with new clause 121.221. New clause 121.221 requires that at the time of deciding an application for a Subclass 121 (Employer Nomination) visa, the appointment mentioned in paragraph 121.211(a) must be approved, must not have been withdrawn, must continue to satisfy the criteria for approval, and must still be available to the applicant. A new note refers readers to subregulation 5.19 for the criteria for the approval of the appointment. New clause 121.221 expands on the requirements of the old clause 121.221 which required only that the appointment be approved at the time of decision. This amendment enhances the integrity of the ENS by ensuring that the appointment must remain genuinely available to the applicant and the employer must continue to be actively and lawfully operating with a record of compliance with immigration and workplace relations law.

 

Item [28] – Schedule 2, after subclause 121.311

This item inserts new clause 121.312 in Schedule 2 to the Principal Regulations.

 

New clause 121.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a Subclass 121 (Employer Nomination) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

 

Item [29] – Schedule 2, paragraph 457.326(a)

This item substitutes paragraph 457.326(a) of Schedule 2 to the Principal Regulations with new paragraph 457.326(a) to provide that this clause applies to applicants who are outside Australia at the time of decision.

 

Clause 457.326 requires applicants who have previously been in Australia to 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. Division 457.4 of Schedule 2 to the Principal Regulations allows applicants to be in or outside Australia at the time of grant of a Subclass 457 (Business (Long Stay)) visa irrespective of their location at the time of application. It is the intention that all applicants outside of Australia at the time of decision must satisfy the prescribed special return criteria.

 

Item [30] – Schedule 2, Division 855.1, note

This item substitutes the Note after clause 855.1 of Schedule 2 to the Principal Regulations with new notes 1, 2, 3, 4, 5, 6 and 7.

 

The purpose of new notes 1, 2, 3, 4, 5, 6 and 7 is to provide a cross-reference to the relevant provisions of the Principal Regulations which define “award course”, “category A course”, “category B student”, “diploma”, “IASS agreement”, “labour agreement” and “RHQ agreement”.

 

Item [31] – Schedule 2, subclause 855.213(1)

This item amends subclause 855.213(1) of Schedule 2 to the Principal Regulations. This amendment is consequential to the insertion of new subclause 855.213(4) in the Principal Regulations by these Regulations.

 

Item [32] – Schedule 2, subclauses 855.213(2) and (3)

This item substitutes subclauses 855.213(2) and 855.213(3) of Schedule 2 to the Principal Regulations with new subclauses 855.213(2), 855.213(3) and 855.213(4).

 

New subclause 855.213(2) sets out the requirements that must be met at the time of application for a Subclass 855 (Labour Agreement) visa by an applicant applying on the basis of being nominated to work in Australia in accordance with a labour agreement.

 

New subclause 855.213(3) sets out the requirements that must be met at the time of application for a Subclass 855 (Labour Agreement) visa by an applicant applying on the basis of being nominated to work in Australia in accordance with an RHQ agreement.

 

New subclause 855.213(4) sets out the requirements that must be met at the time of application for a Subclass 855 (Labour Agreement) visa by an applicant applying on the basis of being nominated to work in Australia in accordance with an IASS agreement.

 

Further explanation is provided at item [22] of Schedule 1 to these Regulations, which relates to similar amendments to Subclass 120 (Labour Agreement) of Schedule 2 to the Principal Regulations.

Item [33] – Schedule 2, clause 855.221

This item substitutes clause 855.221 of Schedule 2 to the Principal Regulations with new subclause 855.221. New subclause 855.211(1) provides that at the time of decision, an applicant for a Subclass 855 (Labour Agreement) visa must meet the requirements of new subclause 855.221(2), (3) or (4).

 

New subclause 855.211(2) sets out the requirements to be met at the time of decision by an applicant for a Subclass 855 (Labour Agreement) visa applying on the basis of being nominated to work in Australia in accordance with a labour agreement.

 

New subclause 855.211(3) sets out the requirements to be met at the time of decision by an applicant for a Subclass 855 (Labour Agreement) visa applying on the basis of being nominated to work in Australia in accordance with an RHQ agreement.

 

New subclause 855.211(4) sets out the requirements to be met at the time of decision by an applicant for a Subclass 855 (Labour Agreement) visa applying on the basis of being nominated to work in Australia in accordance with an IASS agreement.

 

Further explanation is provided at item [23] of Schedule 1 to these Regulations, which relates to similar amendments to Subclass 120 (Labour Agreement) of Schedule 2 to the Principal Regulations.

 

Item [34] – Schedule 2, clause 855.222

This item substitutes clause 855.222 of Schedule 2 to the Principal Regulations with new clause 855.222.

 

New clause 855.222 requires that at the time of deciding an application for a Subclass 855 (Labour Agreement) visa, the Minister must be satisfied that the applicant’s working conditions in Australia will be no less favourable than working conditions provided for under relevant Australian legislation and awards. New subclause 855.222 is intended to make it clear that an applicant’s working conditions can equal or exceed Australian standards.

 

Item [35] – Schedule 2, clause 855.312

This item substitutes clause 855.312 of Schedule 2 to the Principal Regulations with new clause 855.312.

 

New clause 855.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a subclass 855 (Labour Agreement) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

 

Item [36] – Schedule 2, clause 856.213

This item substitutes clause 856.213 of Schedule 2 to the Principal Regulations with new clause 856.213. The purpose of new clause 856.213 is to amend the requirements to be met by an applicant for a Subclass 856 (Employer Nomination) visa at the time of application. 

New paragraph 856.213(a) requires the applicant to have been nominated by an employer in accordance with subregulation 5.19(2) under the ENS, for an appointment in the business of the nominating employer.

 

New paragraph 856.213(b) introduces new requirements relating to the experience and skill levels of the applicant, consequential to the repeal of subregulations 5.19(3) and (3A) (which set out the meaning of “highly skilled person”) of Part 5 of the Principal Regulations by these Regulations. The new requirements are that:

 

·        an assessing authority (specified in a Gazette Notice made by the Minister as the assessing authority for the occupation to which the appointment relates) has assessed the applicant’s skills as suitable and, unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application (information as to what would constitute “exceptional circumstances” will be provided in policy guidelines);

·        the applicant will be paid a salary in the position that is at least the amount of salary specified in a Gazette Notice for this provision.

It is the intention that visa applicants who have worked full-time in the nominated occupation in Australia for the period of 2 years immediately before making their application have been fully qualified and trained in the occupation, and have been working at the same level of competence as that required by the nominated position for the entire 2 year period. Further, any time spent working in a trainee or developmental role in the occupation would not count towards the 2 year requirement. In addition, the applicant must have been working directly for the nominating employer at that level for at least the last year of the 2 year period.

 

New paragraph 856.213(c) requires that, unless exceptional circumstances apply, the applicant has not turned 45 and has vocational English. An applicant may be required to meet both, either or neither of these requirements, depending upon any exceptional circumstances that may exist. Guidance as to what constitutes ‘exceptional circumstances’ will be provided in policy guidelines.

 

Item [37] – Schedule 2, after clause 856.214

This item inserts new clause 856.215 in Schedule 2 to the Principal Regulations.

 

New clause 856.215 requires that, at the time of application for a Subclass 856 (Employer Nomination) visa, if it is mandatory in Australia that to perform tasks of the kind to be performed in the nominated position a person must be the holder of a licence, the holder of registration, or a member of a particular professional body, the applicant must have, or be eligible to obtain, the relevant licence, registration or membership. The types of qualifications required to be held and now listed in new clause 856.215 were previously listed in subregulation 5.19(3A) of Part 5 of the Principal Regulations which was omitted by these Regulations.

 

Item [38] – Schedule 2, clause 856.221

This item substitutes clause 856.221 of Schedule 2 to the Principal Regulations with new clause 856.221.

New clause 856.221 requires that at the time of deciding an application for a Subclass 856 (Employer Nomination) visa, the appointment mentioned in paragraph 856.213(a) must be approved, must not have been withdrawn, must continue to satisfy the criteria for approval, and must still be available to the applicant. A new note refers readers to regulation 5.19 for the criteria for approval of the appointment. New clause 856.221 expands on the requirements of the old clause 856.221 which required only that the appointment be approved at the time of decision. This amendment enhances the integrity of the Employer Nomination Scheme by ensuring that the appointment must remain genuinely available to the applicant, and the employer has continued to be actively and lawfully operating with a record of compliance with immigration and workplace relations law.

 

Item [39] – Schedule 2, clause 856.312

This item substitutes clause 856.312 in Schedule 2 to the Principal Regulations with new clause 856.312.

 

New clause 856.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a subclass 856 (Employer Nomination Scheme) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

 

Item [40] – Schedule 2, Division 857.1

This item substitutes Division 857.1 of Schedule 2 to the Principal Regulations with new Division 857.1.

 

New Division 857.1 includes new clause 857.111, which defines the term “regional Australia” for the purposes of Part 857 to have the same meaning as in regulation 5.19 of the Principal Regulations. This refers to the definition of “regional Australia” in new subregulation 5.19(5), inserted in Part 5 of the Principal Regulations by these Regulations.

 

New Division 857.1 also includes new notes 1, 2, 3, 4, 5, 6, 7, 8 and 9 which provide cross-references to the relevant provisions of the Principal Regulations which define, respectively, “approved appointment”, “award course”, “category A course”, “category B student”, “diploma”, “functional English”, “IASS agreement”, “labour agreement” and “RHQ agreement”. New Note 6 corrects the note to the previous Division 857.1 which referred incorrectly to the term “vocational English”, which is not used in Part 857.

 

Item [41] – Schedule 2, clause 857.213

This item substitutes clause 857.213 of Schedule 2 to the Principal Regulations with new clause 857.213.

 

New paragraph 857.213(a) clarifies the requirement that at the time of application, an applicant for a Subclass 857 (Regional Sponsored Migration Scheme) visa must have been nominated by an employer in accordance with subregulation 5.19(4), that is, under the requirements of the RSMS, for an appointment in the business of that employer.

 

New subparagraph 857.213(b)(i) maintains the requirements of the previous subparagraph 857.213(b)(i) that must be met by an applicant who is taken, under regulation 2.08CA or 2.08CB of the Principal Regulations to have applied for an Employer Nomination (Residence) (Class BW), except for the omission of the previous sub-subparagraph 857.213(b)(i)(C), which referred to subregulation 5.19(3A) which is omitted from Part 5 of the Principal Regulations by these Regulations. The skill levels to be met by the relevant applicants are now set out in the new paragraph 857.213(c), inserted in Schedule 2 of the Principal Regulations by these Regulations, below.

 

New subparagraph 857.213(b)(ii) sets out the requirements to be met by applicants to whom subparagraph 857.213(b)(i) does not apply. New subparagraph 857.213(b)(ii) clarifies the intention that any one, or all, of the three requirements in the subparagraph (that the applicant must not have turned 45, must have functional English, and must have a diploma or higher qualification relevant to the appointment) must be met unless exceptional circumstances apply. The requirements of the previous subparagraph 857.213(b)(ii) did not apply to an applicant if the appointment was exceptional. Guidelines as to what constitutes “exceptional circumstances” in relation to the non-application of any one, or all, of the requirements in the new subclause 857.213 will be set out in policy guidelines.

 

New paragraph 857.213(c) requires that, if it is mandatory in Australia that to perform tasks of the kind to be performed in the nominated position a person must be the holder of a licence, the holder of registration, or a member of a particular professional body, the applicant must have, or be eligible to obtain, the relevant licence, registration or membership. The types of qualifications required to be held and now listed in new paragraph 856.213(b) were previously listed in subregulation 5.19(3A) of Part 5 of the Principal Regulations which was omitted by these Regulations.

 

Item [42] – Schedule 2, clause 857.221

This item substitutes clause 857.221 of Schedule 2 to the Principal Regulations with new clause 857.221. New clause 857.221 requires that at the time of deciding an application for a Subclass 857 (Regional Sponsored Migration Scheme) visa, the appointment mentioned in paragraph 857.213(a) must be approved, must not have been withdrawn, must continue to satisfy the criteria for approval, and must still be available to the applicant. A new note refers readers to subregulation 5.19 for the criteria for the approval of the appointment. New clause 857.221 expands on the requirements of the old clause 857.221 which required only that the appointment be approved at the time of decision. This amendment enhances the integrity of the RSMS by ensuring that the appointment must remain genuinely available to the applicant, and the employer has continued to be actively and lawfully operating with a record of compliance with immigration and workplace relations law.

 

Item [43] – Schedule 2, clause 857.312

This item substitutes clause 857.312 of Schedule 2 to the Principal Regulations with new clause 857.312. New clause 857.312 requires that an applicant seeking to satisfy the secondary criteria for grant of a subclass 857 (Regional Sponsored Migration Scheme) visa as a member of the family unit of a person who satisfies the primary criteria, must also be included in any nomination given in respect of the applicant who satisfies the primary criteria.

Schedule 2 – Amendments relating to Skilled Australian Sponsored (Migrant) (Class BQ) visas

Item [1] – Regulation 1.03 – definition of skilled occupation

This item substitutes the definition of “skilled occupation” in regulation 1.03 of Part 1 of the Principal Regulations with a new definition of “skilled occupation”.

The purpose of this new definition is clarify the operation and validity of the Sydney and Selected Areas Skilled Shortage List, which sets out the occupations that are “skilled occupations” for Skilled – Australian-Sponsored (Migrant) (Class BQ) applicants, whose sponsor resides in Sydney or a selected area of NSW.

 

The effect of the amendment is to enable the Minister to limit the definition of “skilled occupation” with reference to occupations alone, or with reference to both occupations and the postcode of the sponsor.

 

Where an applicant:

 

·        makes an application for a Skilled – Australian-Sponsored (Migrant) (Class BQ) visa; and

·        is sponsored by a person who resides in Sydney or a Selected Area as specified in the Gazette Notice for this paragraph, as evidenced by the residential address they have provided on the sponsorship form;

a “skilled occupation” means an occupation that is in the Sydney and Selected Areas Skilled Shortage List (SSASSL).  The SSASSL and the number of points available for each occupation on that list are also specified in that Gazette Notice. 

 

In any other case, a “skilled occupation” means an occupation that is specified by Gazette Notice for paragraph (b) as a skilled occupation.  That Gazette Notice also sets out the number of points available for each occupation on that broader list.

 

Item [2] – Schedule 1, after paragraph 1128B(3)(c)

This item inserts a new paragraph after paragraph 1128B(3)(d) in Schedule 1 to the Principal Regulations.

 

The purpose of this amendment is to ensure that, to be valid, an application for a Skilled – Australian-Sponsored (Migrant) (Class BQ) visa must be accompanied by a sponsorship form completed by a person who is the sponsor of the applicant.

 

Schedule 3 – Amendments relating to Internet applications for certain visas

Item [1] – Regulation 1.03, definition of Internet application

This item amends the definition of “Internet application” in regulation 1.03 of Part 1 of the Principal Regulations.

 

This item provides that the term “Internet application” means an application for a visa using a form mentioned in paragraph 1.18(2)(b) that is sent to the Department of Immigration and Multicultural and Indigenous Affairs (Immigration) by electronic transmission using a facility made available at an Internet operated under the authority of the Minister, in a way authorised by that facility.

 

The purpose of this amendment is to ensure that the scope of the definition includes only applications which can be submitted electronically. Prior to the amendment made by this item, the term “Internet application” included electronic forms which could be printed, completed in writing by an applicant, and lodged in paper form. The effect of the amendment made by this item is to narrow the definition of “Internet application” so that it only applies to electronic forms which are completed and lodged electronically in an authorised way using an Internet facility operated by the Department.

 

Item [2] – Schedule 1, paragraph 1124B(1)(b)

Item [3] – Schedule 1, paragraph 1129(1)(b)

Item [4] – Schedule 1, subitem 1214C(1)

Item [5] – Schedule 1, subitem 1215(1)

Item [6] – Schedule 1, subitem 1220A(1)

Item [7] – Schedule 1, subitem 1301(1)

Item [8] – Schedule 1, subitem 1303(1)

Item [9] – Schedule 1, subitem 1305(1)

These items amend paragraphs 1124B(1)(b) and 1129(1)(b), and subitems 1214C(1), 1215(1), 1220A(1), 1301(1), 1303(1) and 1305(1) of Schedule 1 to the Principal Regulations to insert a new reference to approved form 47SP (Internet).

 

The purpose of these amendments is to allow partner visa applicants, or applicants for certain bridging visas, to use either the paper based visa application form (form 47SP) or the new interactive electronic application form (form 47SP (Internet)). Form 47SP (Internet) is an electronic form that contains interactive elements which are designed to better inform applicants about the application process. It is proposed that the new form will be completed on-line, and made (lodged) in accordance with the relevant requirements for each class of visa, or if no such requirements, in accordance with regulation 2.10 of Part 2 of the Principal Regulations.

Schedule 4 – Amendments relating to Subclass 679 (Sponsored Family Visitor (Short Stay)) visas

Item [1] – Schedule 2, clause 679.222

This item makes a minor technical amendment to clause 679.222 of Schedule 2 to the Principal Regulations.

 

The purpose of the amendment is to remedy the incorrect reference to subclause 679.214 in clause 679.222 of Schedule 2 to the Principal Regulations.  

 

Item [2] – Schedule 2, clause 679.611

This item amends clause 679.611 of Schedule 2 to the Principal Regulations by inserting condition 8201 as an additional mandatory visa condition.

 

Condition 8201 provides that while in Australia the visa holder must not engage, for more than 3 months, in any studies or training.

The purpose of this amendment is to prevent holders of the Subclass 679 (Sponsored Family Visitor (Short Stay)) visa from engaging in any study or training for more than 3 months, while they are in Australia.


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