EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 10

 

Issued by the Minister for Immigration and Multicultural Affairs

 

Subject -          Migration Act 1958

 

                        Migration Amendment Regulations 2006 (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 changes to the scope of the powers of the Minister for Foreign Affairs to make a determination in relation to an application by a non-citizen for the grant of a visa, and cancellation of a visa held by a non-citizen;

·              provide that the education qualification required to be held by an applicant for the subclass 462 (Work and Holiday) visa is to be specified in a Gazette Notice;

·              further qualify the prescribed circumstances in which an officer must require a person to provide personal identifiers under subsection 188(4) of the Act;

·              prescribe the performance of voluntary activities by unlawful non-citizens detained in detention centres as a circumstance in which work does not constitute an offence under subsection 235(3) of the Act, which provides that it is an offence for an unlawful non-citizen to perform any work other than work of a prescribed kind or under prescribed circumstances; and

·              provide flexibility to the Minister in exercising the discretion to grant a visa to unsuccessful applicants where the Minister considers the grant of a permanent visa would not be appropriate but wishes to avoid the person’s removal from Australia, by enabling holders of certain temporary visas granted by the Minister to apply for further visas and satisfy special eligibility criteria, particularly in cases of unlawful non-citizens who have Australian children.

Details of the Regulations are set out in Attachment B.

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

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

The Regulations commence on 1 March 2006.

 

Transitional provisions clarify which provisions apply to applicants who have applications not finally determined at the time the Regulations commence.

 

The Office of Regulation Review (ORR) in the Productivity Commission was consulted and advised that the regulations in Schedules 1, 2, 3 and 4 are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

 

The following external agencies and other bodies were consulted in relation to the Regulations:

·               The People Smuggling, Refugees and Immigration Section of the Department of Foreign Affairs and Trade were consulted in relation to the amendments in Schedule 1 of these regulations.

·               The Department of Foreign Affairs and Trade were consulted in relation to the proposed Memorandums of Understanding that relate to educational qualification, for the amendments in Schedule 2 of these regulations.

·               Members of the migration agents industry were consulted regarding the general impact on their clients of the amendments in Schedule 5 of these regulations.

 

No other consultations were conducted in relation to the other Schedules to the Regulations, as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 

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 (which, without limiting the generality of this subsection, may be a class provided for by sections 32, 36, 37, or 37A but not by sections 33, 34, 35 or 38 of the Act);

·              subsection 45A of the Act, which provides that the regulations may prescribe 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 regulations may prescribe the amount that is the amount of visa application charge, not exceeding the visa application charge limit;

·              subsection 46(1) of the Act, which provides that the regulations may provide the circumstances where an application for a visa is valid;

·              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 the regulations may prescribe, without limiting subsection 46(3):

-         the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

-         how an application for a visa of a specified class must be made; 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;

·              paragraph116(1)(g) of the Act, which provides that the regulations may prescribe grounds for cancellation of a visa under section 116;

·              subsection 116(3) of the Act, which provides that the regulations may prescribe the circumstances in which the Minister must cancel a visa under subsection 116(1) of the Act;

·              subsection 188(2) of the Act, which provides that a person must comply with a requirement under subsection 188(1) of the Act within a period specified by the officer, being a prescribed period or such further as the officer allows;

·              subsection 188(3) of the Act, which provides that the regulations prescribing a period for compliance may prescribe different periods and the circumstances in which a particular prescribed period is to apply, which may be when the requirement is oral or when the requirement is in writing;

·              subsection 188(4) of the Act, which provides that if prescribed circumstances exist, the officer must require the person to provide one or more personal identifiers; and

·              subsection 235(6) of the Act, which provides that the regulations may prescribe kinds of work or circumstances of work which are taken not to constitute an offence under section 235 of the Act when performed by an unlawful non-citizen or the holder of a visa with a condition prohibiting or restricting working in Australia.

 

ATTACHMENT B

 

Details of the proposed Migration Amendment Regulations 2006 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2006 (No. 1).

 

Regulations 2 - Commencement

 

This regulation provides for the Regulations to commence on 1 March 2006.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedules 1, 2, 3, 4 and 5 to the Regulations.

 

Regulation 4 – Transitional

 

This regulation makes provisions regarding the application of the amendments made by Schedules 1, 2, 3, and 5 to these Regulations.

 

Subregulation 4(1) provides that the amendments made by items [1], [2] and [3] of Schedule 1 apply in relation to the cancellation of a visa on or after 1 March 2006.

 

Subregulation 4(2) provides that the amendments made by items [4] to [17] of Schedule 1 apply in relation to an application for a visa made on or after 1 March 2006, and 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 March 2006.

 

Subregulation 4(3) provides that the amendments made by Schedule 2 apply in relation to an application for a Subclass 462 (Work and Holiday) visa made on or after 1 March 2006.

 

Subregulation 4(4) provides that the amendments made by Schedule 3 apply in relation to a requirement under subsection 188(4) of the Act made by an officer on or after 1 March 2006.

 

Subregulation 4(5) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made on or after 1 March 2006.

 

Schedule 1 – Amendments of provisions relating to foreign policy grounds relevant to the grant and cancellation of visas

 

Item [1] – Paragraph 2.43(1)(a)

 

This item substitutes paragraph 2.43(1)(a) in Part 2 of the Principal Regulations with new paragraph 2.43(1)(a).

New sub-subparagraph 2.43(1)(a)(i)(A) prescribes, as a ground for cancellation of a visa, other than a relevant visa, under paragraph 116(1)(g) of the Act, that the Minister for Foreign Affairs has personally determined that the holder of the visa is a person whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests, or may be directly or indirectly associated with the proliferation of weapons of mass destruction.

The meaning of relevant visa is explained in a new definition inserted in subregulation 2.43(3) by item [4] of this Schedule. Please see the notes on item [4], below.

The effect of new sub-subparagraph 2.43(1)(a)(i)(A) is to substitute the words “prejudicial to relations between Australia and a foreign country” with the words “contrary to Australia’s foreign policy interests”. This amended wording allows the Minister for Foreign Affairs to make determinations in circumstances where the presence in Australia of certain individuals would be contrary to Australia’s foreign policy interests.

The basis for this amendment is that under the current regulations the existing scope of paragraph 2.43(1)(a) is not sufficiently broad to allow the Minister for Foreign Affairs to intervene and prevent visas being issued where there are circumstances when an individual’s presence in Australia, if granted a visa, would be contrary to Australia’s broader foreign policy objectives, but not directly prejudicial to Australia’s relationship with another country.

New sub-subparagraph 2.43(1)(a)(i)(B) maintains the provision of previous paragraph 2.43(1)(a) for cancellation of a visa where the Minister for Foreign Affairs has determined that the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

New subparagraph 2.43(1)(a)(ii) prescribes, as a ground for cancellation of a relevant visa under paragraph 116(1)(g) of the Act, that the Minister for Foreign Affairs has personally determined that the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

The effect of new subparagraph 2.43(1)(a)(ii) is that a relevant visa may be cancelled only on the grounds that the presence of the person in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction, and not on the grounds that the person’s presence would be contrary to Australia’s foreign policy interests. This ensures that Australia’s international legal obligations in respect of holders of certain protection and humanitarian visas are not adversely affected.

A Note follows paragraph 2.43 (1)(a) and refers to the new definition of relevant visa in subregulation 2.43(3), inserted in the Principal Regulations by item [4] of this Schedule.

Item [2] – Paragraph 2.43(2)(a)

This item substitutes paragraph 2.43(2)(a) in Schedule 2 to the Principal Regulations with new paragraphs 2.43(2)(a) and (aa).

Subregulation 2.43(2) prescribes circumstances for the purposes of subsection 116(3) of the Act, under which the Minister must cancel a visa.

New paragraph 2.43(2)(a) provides that the Minister must cancel a visa, other than a relevant visa, when any of the circumstances comprising the grounds set out in sub-subparagraphs 2.43(1)(a)(i)(A) and (B) and paragraph 2.43(1)(b) apply. New sub-subparagraphs 2.43(1)(a)(i)(A) and (B) are inserted in the Principal Regulations by item [1] of this Schedule, above.

New paragraph 2.43(2)(aa) provides that the Minister must cancel a relevant visa when circumstances comprising the grounds set out in subparagraph 2.43(1)(a)(ii) apply. New subparagraph 2.43(1)(a)(ii) is inserted in the Principal Regulations by item [1] of this Schedule, above.

Item [3] – Subregulation 2.43(3)

This item makes a technical amendment to subregulation 2.43(3) in Part 2 of the Principal Regulations, consequential to the insertion of a new definition, relevant visa, by item [4], below.  The new defined term relevant visa occurs in subregulations 2.43(1) and (2) so the definitions in subregulation 2.43(3) are no longer restricted to subregulation 2.43(1).

Item [4] – Subregulation 2.43(3), after definition of business sponsor

This item inserts a new definition, relevant visa, in subregulation 2.43(3) in Part 2 of the Principal Regulations.

The term relevant visa is used in new paragraphs 2.43(1)(a), 2.43(2)(a) and 2.43(2)(aa), inserted in the Principal Regulations by items [1] and [2] of this Schedule, above.

Relevant visa is defined as a list of protection and humanitarian visas.  These visas are excluded from the cancellation provisions in new sub-subparagraphs 2.43(1)(a)(i)(A) and (B) and new paragraph 2.43(2)(a), to avoid any adverse affect on Australia’s international obligations to persons who hold these visas.

Item [5] – Schedule 2, clause 447.225

This item substitutes Public Interest Criterion 4003 in clause 447.225 in Part 447 in Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule. For details of the effect of this amendment, please see the notes on item [18], below.

Item [6] – Schedule 2, paragraph 447.227(1)(a)

This item substitutes Public Interest Criterion 4003 in paragraph 447.227(1)(a) in Part 447 in Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [7] – Schedule 2, paragraph 447.227(2)(a)

This item substitutes Public Interest Criterion 4003 in paragraph 447.227(2)(a) in Part 447 in Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below

Item [8] – Schedule 2, paragraph 447.323(a)

This item substitutes Public Interest Criterion 4003 in paragraph 447.323(a) in Part 447 in Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [9] – Schedule 2, subclause 449.224(1)

This item substitutes Public Interest Criterion 4003 in subclause 449.224(1) in Part 449 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [10] – Schedule 2, subclause 449.322(1)

This item substitutes Public Interest Criterion 4003 in subclause 449.322(1) in Part 449 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [11] – Schedule 2, clause 451.225

This item substitutes Public Interest Criterion 4003 in clause 451.225 in Part 451 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [12] – Schedule 2, paragraph 451.227(1)(a)

This item substitutes Public Interest Criterion 4003 in paragraph 451.227(1)(a) in Part 451 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [13] – Schedule 2, paragraph 451.227(2)(a)

This item substitutes Public Interest Criterion 4003 in paragraph 451.227(2)(a) in Part 451 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [14] – Schedule 2, paragraph 451.323(a)

This item substitutes Public Interest Criterion 4003 in paragraph 451.323(a) in Part 451 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [15] – Schedule 2, clause 785.226

This item substitutes Public Interest Criterion 4003 in clause 785.226 in Part 785 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [18], below.

Item [16] – Schedule 2, clause 786.225

This item substitutes Public Interest Criterion 4003 in clause 786.225 in Part 786 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [17], below.

Item [17] – Schedule 2, clause 866.225

This item substitutes Public Interest Criterion 4003 in clause 866.225 in Part 866 of Schedule 2 to the Principal Regulations with new Public Interest Criterion 4003A, inserted in Schedule 4 to the Principal Regulations by item [18] of this Schedule, below. For details of the effect of this amendment, please see the notes on item [17], below.

Item [18] – Schedule 2, clause 4003

This item substitutes Public Interest Criterion 4003 in Schedule 4 to the Principal Regulations with new Public Interest Criteria 4003 and 4003A.

New Public Interest Criterion 4003 provides that, “the applicant is not determined by the Foreign Minister [that is, the Minister for Foreign Affairs], or a person authorised by the Foreign Minister, to be a person whose presence in Australia: is, or would be, contrary to Australia’s foreign policy interests; or may be directly or indirectly associated with the proliferation of weapons of mass destruction.”

The effect of new Public Interest Criterion 4003 is to make changes to the previous Public Interest Criterion 4003 which are directly similar to the changes made in paragraph 2.43(1)(a) of Part 2 to the Principal Regulations by item [1] of this Schedule, above. For details of the effect of these changes, please see the notes on item [1], above.

Public Interest Criterion 4003 is prescribed as a criterion to be satisfied for the grant of the majority of visas.  The effect of this amendment is that a determination may be made by the Minister for Foreign Affairs, or a person authorised by the Minister for Foreign Affairs, that a person’s presence in Australia would be contrary to Australia’s foreign policy interests. The determination does not need to include any finding by the Minister for Foreign Affairs of prejudice to relations between Australia and a foreign country through the person’s presence in Australia, as under the previous Public Interest Criterion 4003. A determination that the person’s presence in Australia would be contrary to Australia’s foreign policy interests would prevent an applicant from satisfying the criterion.

New Public Interest Criterion 4003 also repeats the requirements of current Public Interest Criterion 4003 that the applicant must not be determined by the Minister for Foreign Affairs, or a person authorised by the Minister for Foreign Affairs, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

New Public Interest Criterion 4003A provides that “the applicant is not determined by the Foreign Minister [that is, the Minister for Foreign Affairs], or a person authorised by the Foreign Minister, to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.”

New Public Interest Criterion 4003A requires only that the applicant must not be determined to be a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. It does not include the requirement that the person’s presence in Australia must not be determined to be contrary to Australia’s foreign policy interests. The effect of new Public Interest Criterion 4003A is that, where prescribed for the grant of the visa, the visa cannot be refused on grounds relating to Australia’s foreign policy interests but can be refused on the grounds relating to proliferation of weapons of mass destruction.

New Public Interest Criterion 4003A is substituted for Public Interest Criterion 4003 by items [5] to [17] of this Schedule, in respect of visas of subclasses 447, 449, 451, 785, 786 and 866.  These subclasses are granted to persons to whom Australia may have protection or humanitarian obligations under international law and refusal of those visas on grounds relating to foreign policy interests would adversely affect Australia’s international legal obligations.

 

Schedule 2 – Amendments relating to Work and Holiday visas

Item [1] – Schedule 2, clause 462.111, including the note

This item omits the interpretation provisions from Part 462 of Schedule 2 to the Principal Regulations, and substitutes a note that there are no interpretation provisions specific to this Part.

The purpose of this amendment is to remove the definitions of the terms “degree” and “diploma” from Part 462 of Schedule 2 to the Principal Regulations. This amendment is consequential to the removal of the use of those terms by the amendment made by Item [2] in this Schedule, below. Following this amendment the qualifications to be held by specific applicants will be specified in a Gazette Notice rather than specified directly in the Principal Regulations. This will allow the required qualifications to be updated more responsively, if further agreements are reached with other countries. 

Item [2] – Schedule 2, paragraph 462.221(c)

This item substitutes paragraph 462.221(c) in Part 462 of Schedule 2 to the Principal Regulations with new paragraph 462.221(c).

New paragraph 462.221(c) requires that an applicant seeking to satisfy the primary criteria for a Subclass 462 (Work and Holiday) visa must (amongst other things) hold an educational qualification specified in a Gazette Notice for this paragraph, in relation to the foreign country that issued the passport mentioned in paragraph 462.221(aa).

Eligibility to apply for, and be granted, a Subclass 462 visa is restricted to applicants holding a passport issued by a foreign country with which the Australian Government has agreed to an arrangement for the purposes of this program.

The previous paragraph 462.221(c) required applicants to hold a “degree” or a “diploma” as defined specifically for the purposes of Part 462. However, the number of countries with which the Australian Government is reaching relevant agreements is expanding, and consequently a wider range of qualifications are being included in these arrangements. It is more appropriate for these qualifications to be specified in a Gazette Notice, which can be updated more responsively.

Schedule 3 – Amendments relating to personal identifiers

Item [1] – Paragraph 3.19A(a)

This item amends paragraph 3.19A(a) in Division 3.3 of Part 3 of the Principal Regulations, by inserting the word “reasonably” before the word “suspects”.

Subsection 188(1) of the Act authorises an officer to require a person, whom the officer reasonably suspects to be a non-citizen, to provide evidence of being a lawful non-citizen or of the person’s identity. Subsection 188(4) of the Act provides that officer must require a person to provide personal identifiers where the officer knows or reasonably suspects that the person is a non-citizen and prescribed circumstances exist. Regulation 3.19A prescribes circumstances for the purpose of subsection 188(4) of the Act.

Currently, paragraph 3.19A(a) specifies the circumstance where an officer “knows or suspects” that the person has refused or failed to comply with a request under subsection 188(1) of the Act, within the applicable prescribed time period under regulation 3.19 or further time period under subsection 188(2) of the Act.

The effect of this amendment is to provide that the officer’s suspicion that the person has refused or failed to comply with a requirement to provide evidence under subsection 188(1) of the Act within the relevant time frame, must be reasonable. This is a more appropriate mental standard for the purposes of this provision.

Item [2] – Paragraph 3.19A(c)

This item amends paragraph 3.19A(c) in Division 3.3 of Part 3 of the Principal Regulations, by inserting the word “reasonably” before the word “satisfied”.

Subsection 188(1) of the Act authorises an officer to require a person, whom the officer reasonably suspects to be a non-citizen, to provide evidence of being a lawful non-citizen or of the person’s identity. Subsection 188(4) of the Act provides that an officer must require a person to provide personal identifiers where the officer knows or reasonably suspect that the person is a non-citizen and prescribed circumstances exist. Regulation 3.19A prescribes circumstances for the purpose of subsection 188(4) of the Act. Currently, paragraph 3.19A(c) specifies the circumstance where the person has provided evidence in order to comply with the officer’s request under subsection 188(1) of the Act during the applicable prescribed or further time period, and the officer is “not satisfied” that the evidence provided is authentic or reliable.

The effect of this amendment is to provide that the officer’s satisfaction that the evidence provided is not authentic or reliable, must be reasonable. This is a more appropriate mental standard for the purposes of this provision.

 

Schedule 4- Amendment relating to work performed by unlawful non-citizens

Item [1] – After regulation 5.32

This item inserts new regulation 5.32A (Work performed by unlawful non-citizens in detention centres) in Part 3 of the Principal Regulations.

New regulation 5.32A provides that for the purposes of subsection 235(6) of the Act, a prescribed circumstance is that the work is performed by an unlawful citizen who is detained in a detention centre established under the Act, and that the work is allocated to the unlawful non-citizen at the non-citizen’s request by an officer at the detention centre.

Subsection 235(3) of the Act makes it an offence for an unlawful non-citizen to perform any work except work that is prescribed under subsection 235(6), or is performed in circumstances prescribed under subsection 235(6).

The effect of new regulation 5.35A is to ensure that unlawful non-citizens detained in detention centres, who perform work that is allocated at the non-citizen’s request, do not commit an offence under subsection 235(3) of the Act.

Such work could include general cleaning and maintenance of the detention centre, assistance with preparing meals or tending to a garden. The participating detainees are rewarded with merit points. Detainees may use their merit points to obtain personal items from the immigration detention shop, and other items via catalogues and in shops while on scheduled excursions. It is intended that the work performed within the detention centre contributes to the overall wellbeing of the detainee by providing participation in meaningful activities that increase the feeling of community inclusion and self esteem.

 

Schedule 5 – Amendments relating to visa applications following Ministerial grant of a substituted Subclass 676 (Tourist) visa

 

Item [1] - Regulation 1.03, after definition of subsidised student

This item inserts a new definition, substituted Subclass 676 visa, in regulation 1.03 of Part 1 of the Principal Regulations.

The term, substituted Subclass 676 visa, is defined to mean a Subclass 676 (Tourist) visa granted following a decision by the Minister to substitute a more favourable decision under section 345, 351, 391, 417, 454 or 501J of the Act.

Under these provisions the Minister may, if the Minister thinks it is in the public interest to do so, substitute a more favourable decision for that of a review tribunal or review officer. The amendment broadens the Minister’s options in cases where it is considered by the Minister to be in the public interest to substitute a more favourable decision but it is not considered to be in the public interest to grant a permanent visa. These amendments make special provisions for holders of a substituted Subclass 676 visa, granted following a decision by the Minister to substitute a more favourable decision, to assist these applicants to apply for certain other visas.

Item [2] - Schedule 1, after subparagraph 1130(2)(a)(i)

This item inserts new subparagraph 1130(2)(a)(ia) in Part 1 of Schedule 1 to the Principal Regulations.

New subparagraph 1130(2)(a)(ia) provides that a holder of a substituted Subclass 676 visa who has previously held a Subclass 173 (Contributory Parent (Temporary)) visa must pay, for the first instalment of the visa application charge (the VAC), $180.

The effect of this amendment is that an applicant for the Subclass 143 (Contributory Parent) visa, who is the holder of a substituted Subclass 676 visa and who has previously held a Subclass 173 (Contributory Parent (Temporary)) visa, will be treated the same, in relation to the first instalment of the VAC payable, as if they continued to hold the Subclass 173 (Contributory Parent (Temporary)) visa. The first instalment of the VAC payable by these applicants is $180.

Item [3] - Schedule 1, after subparagraph 1130(2)(b)(i)

This item inserts new subparagraph 1130(2)(b)(ia) in Part 1 of Schedule 1 to the Principal Regulations.

New sub-subparagraph 1130(2)(b)(ia)(A) provides that a holder of a substituted Subclass 676 visa who has previously held a Subclass 173 (Contributory Parent (Temporary)) visa and is not described in sub-subparagraph 1130(2)(b)(ia)(B) must pay, for the second instalment of the VAC, $11 140.

New sub-subparagraph 1130(2)(b)(ia)(B) provides that the second instalment of the VAC payable by an applicant will be nil where the applicant has held a Subclass 173 (Contributory Parent (Temporary)), is the natural or adopted child, or step-child of an applicant for a Subclass 143 (Contributory Parent) visa and is either the holder of a substituted Subclass 676 visa or the natural or adopted child, or step-child of a holder of a substituted Subclass 676 visa who has applied for the Subclass 143 (Contributory Parent) visa.

The effect of new subparagraph 1130(2)(b)(ia) is that a holder of a substituted Subclass 676 visa who has previously held a Subclass 173 (Contributory Parent (Temporary)) visa, and a holder’s child or children, will pay the same second instalment of the VAC that is payable by an applicant who is the holder, at the time of application, of a Subclass 173 (Contributory Parent (Temporary)) visa. This amendment restores the applicant to the position they would have been in had they continued to hold a Subclass 173 (Contributory Parent (Temporary)) visa when they lodged their application for the Subclass 143 (Contributory Parent) visa.

Item [4] - Schedule 1, paragraph 1130(3)(a)

This item substitutes paragraph 1130(3)(a) in Part 1 of Schedule 1 to the Principal Regulations with new paragraph 1130(3)(a).

New paragraph 1130(3)(a) provides that an applicant who is in Australia and is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa or a substituted Subclass 676 visa, or is the member of the family unit of an applicant who holds a substituted Subclass 676 visa, must make their application in Australia but not in immigration clearance.

The effect of new paragraph 1130(3)(a) is to extend the operation of the existing paragraph 1130(3)(a), which applies to holders of a Subclass 173 (Contributory Parent (Temporary)) visa, to holders of a substituted Subclass 676 visa and members of their family unit.

Item [5] - Schedule 1, after subparagraph 1130A(2)(a)(ii)

This item inserts new subparagraph 1130A(2)(a)(iia) in Part 1 of Schedule 1 to the Principal Regulations.

New subparagraph 1130A(2)(a)(iia) provides that a holder of a substituted Subclass 676 visa who has previously held a Subclass 884 (Contributory Parent (Temporary)) visa must pay, for the first instalment of the VAC, $180.

The effect of new subparagraph 1130A(2)(a)(iia) is that an applicant for a Subclass 864 (Contributory Aged Parent) visa, who is the holder of a substituted Subclass 676 visa and who has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa, will be treated the same, in relation to the first instalment of the VAC payable, as if they continued to hold the Subclass 884 (Contributory Aged Parent (Temporary)) visa. The first instalment of the VAC payable by these applicants is $180.

Item [6] - Schedule 1, after subparagraph 1130A(2)(b)(i)

This item inserts new subparagraph 1130A(2)(b)(ia) in Part 1 of Schedule 1 to the Principal Regulations.

New sub-subparagraph 1130A(2)(b)(ia)(A) provides that a holder of a substituted Subclass 676 visa who has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa and is not described in sub-subparagraph (B) must pay, for the second instalment of the VAC, $11 140.

New sub-subparagraph 1130A(2)(b)(ia)(B) provides that the second instalment of the VAC payable by an applicant will be nil where the applicant held a Subclass 884 (Contributory Aged Parent (Temporary)), is the natural or adopted child, or step-child of an applicant for a Subclass 864 (Contributory Aged Parent) visa, and is either the holder of a substituted Subclass 676 visa or the natural or adopted child, or step-child of a holder of a substituted Subclass 676 visa who has applied for a Subclass 864 (Contributory Aged Parent) visa.

The effect of new subparagraph 1130A(2)(b)(ia) is that a holder of a substituted Subclass 676 visa who has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa, and that holder’s child or children, will pay the same second instalment of the VAC that is payable by an applicant who is the holder, at the time of application, of a Subclass 884 (Contributory Aged Parent (Temporary)) visa. This amendment restores the applicant to the position they would have been in had they continued to hold a Subclass 884 (Contributory Aged Parent (Temporary)) visa when they lodged their application for a Subclass 864 (Contributory Aged Parent) visa.

Item [7] - Schedule 2, subparagraph 143.211(b)(i)

This item substitutes subparagraph 143.211(b)(i) in Part 143 of Schedule 2 to the Principal Regulations with new subparagraph 143.211(b)(i).

New subparagraph 143.211(b)(i) provides that an applicant for a Subclass 143 (Contributory Parent) visa may be either a person who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application or a person who both was previously the holder of a Subclass 173 (Contributory Parent (Temporary)) visa and is, at the time of application, the holder of a substituted Subclass 676 visa.

The effect of new subparagraph 143.211(b)(i) is to provide holders of a substituted Subclass 676 visa who have previously held a Subclass 173 (Contributory Parent (Temporary)) visa with the same concession that is provided to holders of a Subclass 173 (Contributory Parent (Temporary)) visa where the child, of which they were the parent, has died. This amendment enables holders of a substituted Subclass 676 visa who have previously held a Subclass 173 (Contributory Parent (Temporary)) visa to be eligible for grant of a Subclass 143 (Contributory Parent) visa even where the child described in paragraph 143.211(a) of the Principal Regulations has died and the applicant is not the parent of another child that could sponsor them.

Item [8] - Schedule 2, clause 143.213

This item substitutes clause 143.213 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.213. 

New clause 143.213 provides that an applicant for a Subclass 143 (Contributory Parent) visa who neither holds a Subclass 173 (Contributory Parent (Temporary)) visa nor a substituted Subclass 676 visa at the time of application is required to satisfy the balance of family test.

The effect of new clause 143.213 is to extend the existing exemption to the balance of family test that applies to holders of a Subclass 173 (Contributory Parent (Temporary)) visa to applicants who hold, at the time of application, a substituted Subclass 676 visa. This amendment provides that a holder of a substituted Subclass 676 visa at the time of application is not required to satisfy the balance of family to be eligible for grant of a Subclass 143 (Contributory Parent) visa.

Item [9] - Schedule 2, clause 143.223

This item substitutes clause 143.223 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.223.

New clause 143.223 provides that an applicant who is neither, at the time of application, the holder of a Subclass 173 (Contributory Parent (Temporary)) visa or a substituted Subclass 676 visa must continue to satisfy the balance of the family test.

This amendment continues, at the time of decision, the effect of the amendment made by new clause 143.213 in item [8] of this Schedule.  Please see the notes on item [8] above.

Item [10] - Schedule 2, clause 143.225

This item substitutes clause 143.225 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.225.

New clause 143.225 provides that an applicant for a Subclass 143 (Contributory Parent) visa who is not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application must satisfy the public interest criteria mentioned for the applicant in the item of the table that relates to the applicant. The table provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application the applicant must satisfy public interest criteria 4004, 4005, 4009 and 4010. If the applicant was the holder of a substituted Subclass 676 visa at time of application, the applicant must satisfy public interest criteria 4009, 4010 and 4007 unless the applicant has previously held a Subclass 173 (Contributory Parent (Temporary)) visa and therefore has already satisfied certain health checks. These applicants must satisfy such health checks as the Minister considers appropriate.

The effect of new clause 143.225 is to introduce, for holders of a substituted Subclass 676 visa, a health criterion under which certain requirements may be waived (public interest criterion 4007) and to remove the requirement that these applicants satisfy public interest criterion 4004 which relates to outstanding debts to the Commonwealth. This amendment relaxes these public interest criteria for an applicant who is the holder of a substituted Subclass 676 visa at the time of application. These applicants who may have failed to satisfy the original criteria for grant of a Subclass 143 (Contributory Parent) visa may now satisfy these relaxed criteria and be eligible for the grant of a Subclass 143 (Contributory Parent) visa. This concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

With the exception of these special provisions for holders of a substituted Subclass 676 visa, no other changes have been made to the public interest criteria that an applicant must satisfy in clause 143.225.

Item [11] - Schedule 2, clause 143.229

This item substitutes clause 143.229 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.229.

New clause 143.229 provides that if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is an applicant for the Subclass 143 (Contributory Parent) visa must satisfy the public interest criteria mentioned in the item of the table that relates to the applicant, and if the member of the family unit has previously been in Australia, must satisfy the special return criteria mentioned in the item.

The table in new clause 143.229 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application, each member of the applicant’s family unit included in the application must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010, and, if the member of the family unit has previously been in Australia, special return criteria 5001, 5002 and 5010. If, at the time of application, the applicant was the holder of a substituted Subclass 676 visa, each member of the family unit included in the application must satisfy public interest criteria 4001, 4002, 4003, 4009, 4010 and 4007 unless the member of the family unit has previously held a Subclass 173 (Contributory Parent (Temporary)) visa and therefore has already satisfied certain health checks. These members of the family unit must satisfy such health checks as the Minister considers appropriate.  Members of the family unit who have previously been in Australia must also satisfy special return criteria 5001, 5002 and 5010.

The effect of this amendment is to introduce for members of the family unit of an applicant, where the applicant is the holder of a substituted Subclass 676 visa at the time of application, relaxed criteria similar to that introduced for the applicant by the amendments made by item [10] of this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit of an applicant who holds a substituted Subclass 676 visa at the time of application, no other changes have been made to the public interest criteria in clause 143.229 that must be satisfied by members of the family unit of the applicant.

Item [12] - Schedule 2, clause 143.230

This item substitutes clause 143.230 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.230.

New clause 143.230 provides that if the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for the Subclass 143 (Contributory Parent) visa must satisfy the public interest criteria mentioned in the item of the table that relates to the applicant.

The table in new clause 143.230 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application the member of the family unit must satisfy the public interest criteria 4001, 4002, 4003, 4004, and 4005 unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4005, which includes health checks. If the applicant was the holder of a substituted Subclass 676 visa at time of application the member of the family unit must satisfy public interest criteria 4001, 4002, 4003 and 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4007 including health checks.

The effect of this amendment is to introduce for members of the family unit of an applicant, where the applicant is the holder of a substituted Subclass 676 visa at time of application, relaxed criteria similar to that introduced for an applicant by the amendment made by item [10] of this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit of an applicant who is the holder of a substituted Subclass 676 visa at the time of application, the remaining public interest criteria required to be satisfied by a member of the family unit in clause 143.230 remain the same.

Item [13] - Schedule 2, clause 143.324

This item substitutes clause 143.324 in Part 143 of Schedule 2 to the Principal Regulations with new clause 143.324.

New clause 143.324 provides that an applicant who is not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, must satisfy the public interest criteria mentioned for the applicant in the item in the table that relates to the applicant.

The table in new clause 143.324 provides that if the applicant is a member of the family unit of a person who is not the holder of a substituted Subclass 676 visa at the time of application, the applicant must satisfy public interest criteria 4004, 4005, 4009 and 4010.  If the applicant is a member of the family unit of a person who was the holder of a substituted Subclass 676 visa at the time of application, the public interest criteria to be satisfied by the applicant is public interest criteria 4009, 4010 and 4007 unless the applicant has previously held a Subclass 173 (Contributory Parent (Temporary)) visa and therefore has already satisfied certain health checks. These applicants must satisfy such health checks as the Minister considers appropriate.

The effect of this amendment is to introduce for members of the family unit of a person (a primary applicant) who holds a substituted Subclass 676 visa at time of application, relaxed criteria similar to that introduce for applicants satisfying the primary criteria in item [10] above. Please see the notes on that item, above.

With the exception of these special provisions for a member of the family unit of a primary applicant who is the holder of a substituted Subclass 676 visa at the time of application, no other changes have been made to the remaining public interest criteria that must be satisfied by the members of the family unit.

Item [14] - Schedule 2, Division 143.4

This item substitutes Division 143.4 in Part 143 of Schedule 2 to the Principal Regulations with new Division 143.4.

New Division 143.3 contains new clauses 143.411 and 143.412 relating to the circumstances applicable to the grant of a Subclass 143 (Contributory Parent) visa. New clause 143.411 provides that an applicant who at the time of application is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa, or a substituted Subclass 676 visa, or is the member of the family unit of an applicant who holds a substituted Subclass 676 visa, may be in or outside Australia but not in immigration clearance when the visa is granted.

New clause 143.412 provides that if clause 143.411 does not apply, the applicant must be outside Australia when the visa is granted.

The effect of this amendment is to extend the existing clause 143.411, which covers holders of a Subclass 173 (Contributory Parent (Temporary)) visa, to an applicant who holds a substituted Subclass 676 visa at time of application, and members of their family unit. This amendment allows these applicants to be either inside or outside Australia when the visa is granted. Clause 143.412 requires all other applicants not covered by clause 143.411 to be outside Australia when the visa is granted. This amendment avoids holders of a substituted Subclass 676 visa and the members of the family unit who are in Australia from being required to depart Australia to be granted the Subclass 143 (Contributory Parent) visa.

Item [15] - Schedule 2, clause 804.221

This item substitutes clause 804.221 in Part 804 of Schedule 2 to the Principal Regulations with new clause 804.221.

New clause 804.221 provides that the applicant must be an aged parent of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen mentioned in paragraph 804.212(1)(a), or, if the applicant is the holder of a substituted Subclass 676 visa at the time of application, the applicant must be the parent of an Australian citizen, Australian permanent resident or of an eligible New Zealand citizen.

The effect of this amendment is to remove, for an applicant who is the holder of a substituted Subclass 676 visa at the time of application, the requirement that the applicant be an aged parent. An applicant who holds a substituted Subclass 676 visa at the time of application is still required to be a parent of an Australian citizen, Australian permanent resident or of an eligible New Zealand citizen to satisfy this clause. This amendment enables an applicant, who was the holder of a substituted Subclass 676 at time of application, who may have failed to satisfy the aged parent requirement of clause 804.221, to now satisfy the requirement and be eligible for the grant of a Subclass 804 (Aged Parent) visa. This concession is made available only where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

Item [16] - Schedule 2, clause 804.223, not including the note

This item substitutes clause 804.223 in Part 804 of Schedule 2 to the Principal Regulations with new clause 804.223.

New clause 804.223 provides that an applicant who was not the holder of a substituted Subclass 676 visa at the time of application is required to satisfy the balance of family test.

The effect of this amendment is to provide that a holder of a substituted Subclass 676 visa is not required to satisfy the balance of family test to be eligible for grant of the Subclass 804 (Aged Parent) visa. By removing the requirement this amendment provides that an applicant who was the holder of a substituted Subclass 676 visa at the time of application and who was not able to satisfy the test will now be eligible for the grant of a Subclass 804 (Aged Parent) visa. This concession is made available only where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

 

Item [17] - Schedule 2, clauses 804.225 and 804.226

This item substitutes clauses 804.225 and 804.226 in Part 804 of Schedule 2 to the Principal Regulations with new clauses 804.225 and 804.226.

New clause 804.225 requires an applicant to satisfy the public interest criteria mentioned for the applicant in the item in the table that relates to the applicant. The table in new clause 804.225 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application the applicant must satisfy public interest 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant was the holder of a substituted Subclass 676 visa at the time of application the applicant must satisfy public interest criteria 4001, 4002, 4003, 4007, 4009 and 4010.

New subclause 804.226(1) provides that each member of the family unit of the applicant who is an applicant for a Subclass 804 (Aged Parent) visa is a person who satisfies the public interest criteria mentioned in the item in the table that relates to the applicant.  The table in new subclause 804.226(1) provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application the public interest criteria to be satisfied by the member of the family unit are 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant was the holder of a substituted Subclass 676 visa at the time of application the public interest criteria to be satisfied by the member of the family unit are 4001, 4002, 4003, 4007, 4009 and 4010.

New subclause 804.226(2) provides that each member of the family unit of the applicant who is not an applicant for a Subclass 804 (Aged Parent) visa is a person who satisfies the public interest criteria mentioned in the item in the table that relates to the applicant. The table in new subclause 804.226(2) provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application the public interest criteria to be satisfied by the member of the family unit are 4001, 4002, 4003, 4004 and 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4005, which include health checks. If the applicant was the holder of a substituted Subclass 676 visa at the time of application the public interest criteria to be satisfied by the member of the family unit are 4001, 4002, 4003 and 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4007 including health checks.

The effect of these amendments is to introduce for applicants who at the time of application hold a substituted Subclass 676 visa (clause 804.225) and members of the applicant’s family unit (clause 804.226) a health criterion under which certain requirements may be waived (public interest criterion 4007) and to remove the requirement that these applicants and members of the applicant’s family unit are required to satisfy public interest criterion 4004 which relates to outstanding debts to the Commonwealth. By relaxing the public interest criteria for an applicant who holds a substituted Subclass 676 visa at time of application and members of the applicant’s family unit, the applicant may now be eligible for the grant of a Subclass 804 (Aged Parent) visa where before this amendment they may have failed.  These concessions are made available to applicants only where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

With the exception of these special provisions for applicants who hold a substituted Subclass 676 visa at time of application, and members of the applicant’s family unit, no further changes have been made by these amendments to the public interest criteria that are required to be satisfied by the applicant and members of the applicant’s family unit.

Item [18] - Schedule 2, clause 804.322

This item substitutes clause 804.322 in Part 804 of Schedule 2 to the Principal Regulations with new clause 804.322.

New clause 804.322 provides that the applicant must satisfy the public interest criterion mentioned for the applicant in the item in the table that relates to the applicant. The table in new clause 804.322 provides that if the applicant is a member of the family unit of a person who is not the holder of a substituted Subclass 676 visa at the time of application, the public interest criteria to be satisfied by the applicant are public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant is a member of the family unit of a person who was the holder of a substituted Subclass 676 visa, the public interest criteria to be satisfied by the applicant is public interest criteria 4001, 4002, 4003, 4007, 4009, 4010.

The effect of this amendment is to introduce for members of the family unit of a person (a primary applicant) relaxed criteria similar to that introduce for applicants satisfying the primary criteria for the Subclass 804 (Aged Parent) visa in item [17] above. Please see notes for that item above. 

With the exception of these special provisions for members of the family unit who are a member of the family unit of a primary applicant who is the holder of a substituted Subclass 676 visa at the time of application, no other changes have been made to the remaining public interest criteria that must be satisfied by these members of the family unit.

Item [19] - Schedule 2, after paragraph 864.212(a)

This item inserts new paragraph 864.212(ab) in Part 864 of Schedule 2 to the Principal Regulations.

New paragraph 864.212(ab) provides that the holder of a substituted Subclass 676 visa, to be eligible for a Subclass 864 (Contributory Aged Parent) visa, is required to be the parent of a person who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

The effect of this amendment is to remove, for an applicant who is the holder of a substituted Subclass 676 visa, the requirement that the applicant be an aged parent. To satisfy the requirement of new paragraph 864.212(ab) an applicant who holds a substituted Subclass 676 visa is only required to be a parent of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. An applicant who is the holder of a substituted Subclass 676 visa, who may have failed to satisfy the original aged parent criteria in clause 864.212, may now, because of the relaxed criteria, be eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa. This concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

Item [20] - Schedule 2, subparagraph 864.212(b)(i) 

This item substitutes subparagraph 864.212(b)(i) in Part 864 of Schedule 2 to the Principal Regulations with new subparagraph 864.212(b)(i).

New subparagraph 864.212(b)(i) provides that at the time of application an applicant for a Subclass 864 (Contributory Aged Parent) visa may be a person who is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa, or who was the previous holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa and who at the time of application holds a substituted subclass 676 visa.

The effect of this amendment is to provide holders of a substituted Subclass 676 visa who have previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa with the same concession that is provided to holders of a Subclass 884 (Contributory Aged Parent (Temporary)) visa where the child, of which they were the parent, has died. This amendment works with the amendments made by Items [19], [21] and [22] of this Schedule to enable a holder of a substituted Subclass 676 visa who have previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa to be eligible for grant of a Subclass 864 (Contributory Aged Parent) visa where the child described in paragraph 864.212(1) or paragraph 864.212(ab) has died (Item [21]) and the applicant is not the parent of another child described in those paragraphs (Item [22]).

Item [21] – Schedule 2, subparagraph 864.212(b)(ii)

This item inserts after the words “paragraph (a)”in subparagraph 864.212(b)(ii) the words “or (ab)”

Subparagraph 864.212(b)(ii) provides that an applicant may no longer be the parent of a child described in paragraph 864.212(a) or new paragraph 864.212(ab).

This amendment works with the amendments made by Items [19], [20] and [22] of this Schedule (see notes on these items above) to enable an applicant for the subclass 864 (Contributory Aged Parent) visa who is the parent of a child described in paragraph 864.212(a) or new paragraph 864.212(ab) that has died, to be eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa.

Item [22] – Schedule 2, subparagraph 864.212(b)(iii)

This item inserts after the words “paragraph (a)”in subparagraph 864.212(b)(iii) the words “or (ab)”

Subparagraph 864.212(b)(iii) provides for an applicant who is no longer the parent of another child described in paragraph 864.212(a) or new paragraph 864.212(ab).

This amendment works with the amendments made by Items [19], [20] and [21] of this Schedule to enable an applicant for the Subclass 864 (Contributory Aged Parent) visa who is the parent of a child that has died and who is not the parent of another child described in paragraph 864.212(a) or new paragraph 864.212(ab) to be eligible for the grant of a Subclass 864 (Contributory Aged Parent) visa.

Item [23] - Schedule 2, clause 864.214

This item substitutes clause 864.214 in Part 864 of Schedule 2 to the Principal Regulations with new clause 864.214. New clause 864.214 provides that an applicant who neither holds a Subclass 884 (Contributory Aged Parent (Temporary)) visa nor a substituted Subclass 676 visa at time of application is required to satisfy the balance of family test.

The effect of new clause 864.214 is to extend the existing exemption to the balance of family test that applies to applicants who are holders of a Subclass 884 (Contributory Aged Parent (Temporary)) visa to applicants who hold, at the time of application, a substituted Subclass 676 visa. This amendment provides that a holder of a substituted Subclass 676 visa at the time of application is not required to satisfy the balance of family to be eligible for grant of a Subclass 864 (Contributory Aged Parent) visa, and therefore makes the same concession available to them as is available to applicants who are holders of a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

Item [24] - Schedule 2, clause 864.223

This item substitutes clause 864.223 in Part 864 of Schedule 2 to the Principal Regulations with new clause 864.223.

New clause 864.223 provides that an applicant who is not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application must satisfy the criteria mentioned for the applicant in the item in the table that relates to the applicant. The tables in new clause 864.223 provides that an applicant who does not hold, at the time of application, a substituted Subclass 676 visa must satisfy the balance of the family test and public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant is not the holder of a substituted Subclass 676 visa the applicant must satisfy public interest criteria 4001, 4002, 4003, 4009, 4010 and 4007 unless the applicant has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) via and therefore has already satisfied certain health checks. These applicants must satisfy such health checks as the Minister considers appropriate.

The effect of new clause 864.223 is to introduce, for holders of a substituted Subclass 676 visa, a health criterion under which certain requirements may be waived (public interest criterion 4007) and to remove the requirement that these applicants satisfy public interest criterion 4004 which relates to outstanding debts to the Commonwealth. This amendment relaxes the public interest criteria for an applicant who is the holder of a substituted Subclass 676 visa at time of application so that the applicant, who may have failed to satisfy the original criteria for grant of a Subclass 864 (Contributory Aged Parent) visa, may now satisfy the relaxed criteria and be eligible for the grant of that visa. This concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

With the exception of these special provisions for holders of a substituted Subclass 676 visa, there are no other changes to the other public interest criteria which are required to be satisfied in clause 864.223 by an applicant for the Subclass 864 (Contributory Aged Parent) visa.

Item [25] - Schedule 2, clauses 864.227 and 864.228

This item substitutes clauses 864.227 and 864.228 in Part 864 of Schedule 2 to the Principal Regulations with new clauses 864.227 and 864.228.

New clause 864.227 provides that if the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is an applicant for a Subclass 864 (Contributory Aged Parent) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant, and, if the member of the family unit has previously been in Australia, the member of the family unit must satisfy the special return criteria mentioned in the item.

The table in new clause 864.227 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application, each member of the family unit must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010, and, if the member of the family unit has previously been in Australia, the member of the family unit must satisfy special return criteria 5001, 5002 and 5010. If the applicant is not the holder of a substituted Subclass 676 visa at the time of application, each member of the family unit must satisfy public interest criteria 4001, 4002, 4003, 4009, 4010 and 4007 unless the member of the family unit has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) via and therefore has already satisfied certain health checks. These members of the family unit must satisfy such health checks as the Minister considers appropriate. Members of the family unit who have previously been in Australia must also satisfy special return criteria 5001, 5002 and 5010.

New clause 864.228 provides that if the applicant was not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, each member of the family unit of the applicant who is not an applicant for a Subclass 864 (Contributory Aged Parent) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant.

The table in new clause 864.228 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application, each member of the family unit must satisfy public interest criteria 4001, 4002, 4003, 4004, and 4005 unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4005. If the applicant was the holder of a substituted Subclass 676 visa at the time of application each member of their family unit must satisfy public interest criteria 4001, 4002, 4003 and 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment for criterion 4007.

The effect of this amendment is to introduce for members of the family unit of an applicant, where the applicant is the holder of a substituted Subclass 676 visa at the time of application relaxed criteria similar to that introduced for the applicant by the amendments made by item [24] of this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit of an applicant who holds a substituted Subclass 676 visa at the time of application, no other changes have been made to the criteria in clauses 864.227 and 864.228 that must be satisfied by members of the family unit.

Item [26] - Schedule 2, clause 864.324

This item substitutes clause 864.324 in Part 864 of Schedule 2 to the Principal Regulations with new clause 864.324.

New clause 864.324 provides that an applicant, who is not the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application, must satisfy the public interest criterion mentioned for the applicant in the item in the table that relates to the applicant.

The table in new clause 864.324 provides that if the applicant is a member of the family unit of a person who is not the holder of a substituted Subclass 676 visa, the public interest criteria to be satisfied by the applicant are public interest criteria 4004, 4005, 4009 and 4010. If the applicant is a member of the family unit of a person who is the holder of a substituted Subclass 676 visa, the public interest criteria to be satisfied by the applicant are public interest criteria 4009, 4010 and 4007, unless the applicant has previously held a Subclass 884 (Contributory Aged Parent (Temporary)) visa and therefore has already satisfied certain health checks. These applicants must satisfy such health checks as the Minister considers appropriate.

The effect of this amendment is to introduce for members of the family unit of a person (a primary applicant) who is the holder of a substituted Subclass 676 visa at time of application, relaxed criteria similar to that introduced for applicants satisfying the primary criteria for the Subclass 864 (Contributory Aged Parent) visa in item [24] in this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit of a primary applicant who is the holder of a substituted Subclass 676 visa at the time of application, no other changes have been made to the remaining public interest criteria that must be satisfied by these members of the family unit.

Item [27] - Schedule 2, subclause 884.212(1)

This item substitutes subclause 884.212(1) in Part 884 of Schedule 2 to the Principal Regulations with new subclause 884.212(1).

New subclause 884.212(1) provides that an applicant for a Subclass 864 (Contributory Aged Parent) visa must be the aged parent of a person who is a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen, or, where the applicant holds a substituted Subclass 676 visa, the applicant must be to parent of a person who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.  The applicant must be sponsored in accordance with subclauses (2) and (3).

The effect of this amendment is to remove, for an applicant who is the holder of a substituted Subclass 676 visa at the time of application, the requirement that the applicant be an aged parent.  An applicant who holds a substituted Subclass 676 visa at the time of application is still required to be a parent of a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen to satisfy clause 884.212. This amendment enables an applicant, who was the holder of a substituted Subclass 676 at time of application, who may have not been an aged parent as required by paragraph 884.212(1)(a), to now satisfy the requirement and be eligible for the grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa. This concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

Item [28] - Schedule 2, clause 884.213

This item substitutes clause 884.213 in Part 884 of Schedule 2 to the Principal Regulations with new clause 884.213.

New clause 884.213 provides that an applicant who is not the holder of a substituted Subclass 676 visa at the time of application must satisfy the balance of family test.

The effect of this amendment is to provide that a holder of a substituted Subclass 676 visa is not required to satisfy the balance of family test to be eligible for a Subclass 884 (Contributory Aged Parent (Temporary)) visa. By removing this requirement, this amendment provides that an applicant who was the holder of a substituted Subclass 676 visa, who was not able to previously satisfy the balance of family test, may now be eligible for the grant of a Subclass 884 (Contributory Aged Parent) visa. This concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

Item [29] - Schedule 2, clauses 884.223 and 884.224

This item substitutes clauses 884.223 and 884.224 in Part 884 of Schedule 2 to the Principal Regulations with new clauses 884.223 and 881.224.

New clause 884.223 provides that an applicant who is not the holder of a substituted Subclass 676 visa at the time of application is required to continue to satisfy the balance of the family test.

New clause 884.224 requires an applicant to satisfy the public interest criteria mentioned for the applicant in the item in the table. The table in new clause 884.224 provides that if the applicant was not the holder of a substituted Subclass 676 visa at time of application, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant was the holder of a substituted Subclass 676 visa at the time of application, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4007, 4009 and 4010.

The effect of new clause 884.223 is to continue, at the time of decision, the effect of the amendment made by new clause 884.213 in item [28] of this Schedule. Please see the notes on item [28] above.

The effect of new clause 884.224 is to introduce, for holders of a substituted Subclass 676 visa, a health criterion under which certain requirements may be waived (public interest criterion 4007) and to remove the requirement that these applicants must satisfy public interest criterion 4004 which relates to outstanding debts to the Commonwealth. This amendment relaxes the public interest criteria for an applicant who is the holder of a substituted Subclass 676 visa at time of application, so that the applicant, who may have failed to satisfy the original criteria for grant of a Subclass 884 (Contributory Aged Parent (Temporary)) visa, may now satisfy these relaxed criteria. These concession is made available only to applicants where the Minister has determined it to be in the public interest to grant a substituted Subclass 676 visa.

With the exception of these special provisions for holders of a substituted Subclass 676 visa, no other changes have been made to the criteria in clauses 884.223 and 884.224 that must be satisfied by an applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa.

Item [30] - Schedule 2, clauses 884.226 and 884.227

This item substitutes clauses 884.226 and 884.227 in Part 884 of Schedule 2 to the Principal Regulations with new clauses 884.226 and 884.227.

New clause 884.226 provides that each member of the family unit of the applicant who is an applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant, and, if the member of the family unit has previously been in Australia, the member of the family unit must satisfy the special return criteria mentioned in the item.

The table in new clause 884.226 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application, each member of their family unit who is included in the application for a Subclass 884 (Contributory Aged Parent (Temporary)) visa must satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and, 4010 and if the member of the family unit has previously been in Australia, special return criteria 5001, 5002 and 5010. If the applicant is not the holder of a substituted Subclass 676 visa at the time of application, each member of their family unit must satisfy public interest criteria 4001, 4002, 4003, 4009 and 4010, and, if the member of the family unit has previously been in Australia special return criteria 5001, 5002 and 5010.

New clause 884.227 provides that each member of the family unit of the applicant who is not an applicant for a Subclass 884 (Contributory Aged Parent (Temporary)) visa must satisfy the public interest criteria mentioned in the item in the table that relates to the applicant.

The table in new clause 884.227 provides that if the applicant was not the holder of a substituted Subclass 676 visa at the time of application, each member of their family unit must satisfy public interest criteria 4001, 4002, 4003, 4004 and 4005 unless the Minister is satisfied that it would be unreasonable to require that person to undergo assessment for criterion 4005. If the applicant is not the holder of a substituted Subclass 676 visa at the time of application each member of their family unit must satisfy public interest criteria 4001, 4002, 4003 and 4007 unless the Minister is satisfied that it would be unreasonable to require that person to undergo assessment for criterion 4007.

The effect of this amendment is to introduce for members of the family unit of an applicant, where the applicant is the holder of a substituted Subclass 676 visa at the time of application, relaxed criteria similar to that introduced for the applicant by the amendments made to new clause 884.224 in item [29] of this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit of an applicant who holds a substituted Subclass 676 visa at the time of application, no other changes have been made to the criteria in clauses 884.226 and 884.227 that must be satisfied by members of the family unit.

Item [31] - Schedule 2, clause 884.323

This item substitutes clause 884.323 in Part 884 of Schedule 2 to the Principal Regulations with new clause 884.323.

New clause 884.323 provides that an applicant who is not a contributory parent newborn child must satisfy the criteria mentioned for the applicant in the item in the table that relates to the applicant. The table in new clause 884.323 provides that if the applicant is a member of the family unit of a person who was not the holder of a substituted Subclass 676 visa at the time of application, the public interest criteria to be satisfied by the applicant are 4001, 4002, 4003, 4004, 4005, 4009 and 4010. If the applicant is a member of the family unit of a person who was the holder of a substituted Subclass 676 visa at the time of application, the public interest criteria to be satisfied are 4001, 4002, 4003, 4007, 4009 and 4010.

The effect of this amendment is to introduce for members of the family unit of a person (a primary applicant) relaxed criteria similar to that introduced for applicants satisfying the primary criteria in new clause 884.224 in item [29] of this Schedule. Please see the notes on that item, above.

With the exception of these special provisions for members of the family unit who are the member of the family unit of a primary applicant who is the holder of a substituted Subclass 676 visa at the time of application, no other changes have been made to the remaining public interest criteria that must be satisfied by these members of the family unit.