EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 250

 

Issued by the Minister for Immigration

and Multicultural Affairs

 

 

Subject - Migration Act 1958

 

Migration Amendment Regulations 2006 (No. 6)

 

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 provisions of the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy. The changes relate to the skilled migration program.

In particular, the Regulations:

·        provide that the discretion to determine that an International English Language Testing System (IELTS) test is ‘not necessary’ or ‘reasonably practicable’ can only be exercised where a person does not have a recent IELTS test score - to prevent an applicant who has recently failed an IELTS test from accessing the discretion;

·        amend the general points test to provide that in order to have points awarded for a spouse’s qualifications, the spouse cannot be an Australian citizen or Australian permanent resident;

·        remove condition 8501 (the requirement to maintain health insurance) from a bridging visa associated with an application for certain permanent skilled visas because permanent residents have access to Medicare;

·        impose condition 8501 (the requirement to maintain health insurance) on a bridging visa associated with an application for certain temporary skilled visas where this condition was imposed on their previous visa - this ensures they maintain their health insurance while waiting for the outcome of their next visa application;

·        replace references to ‘Gazette Notice’ with ‘instrument in writing’ in accordance with the Legislative Instruments Act 2003;

·        provide that the main applicant for a skilled visa (ie not the family members) must be less than 45 years of age and must supply a suitable skills assessment in order to make a valid application for the visa;

·        provide that either the main applicant for a skilled visa or their spouse can be related to the sponsor to satisfy sponsorship requirements, but the main applicant must meet the age, work experience and skills assessment requirements;

·        ensure that where an applicant for a permanent skilled visa is required to make a declaration with their application, the Minister must be satisfied that the declaration is true;

·        require that the Minister must be satisfied that evidence given about an applicant’s skills assessment for a permanent skilled visa is not false or misleading in a material particular;

·        expand the range of permanent visas that an applicant is also deemed to have applied for when they apply for certain visas, in order to facilitate the grant of a visa to applicants who obtain nominations for employment in Australia while their original visa application is being processed;

·        ensure that certain temporary skilled visa holders have settled in a regional area on the temporary visa before they may be granted certain permanent visas;

·        provide relaxed visa requirements for a certain permanent skilled visa if the applicant holds a certain temporary skilled visa, as the person would have already met the relevant requirements when granted the temporary visa; and

·        make various minor amendments in relation to skilled and sponsored visas to ensure the integrity of the general skilled migration program.

 

Details of the Regulations are set out in Attachment B.

 

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

 

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 October 2006.

 

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.

 

No other consultations were conducted in relation to the Schedules to these 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) of the Act, the following provisions may apply:

·        paragraph 5(2)(b) of the Act provides that the regulations may prescribe the evidence of a person’s English language proficiency;

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

·        subsection 31(5) of the Act provides that the regulations may specify that a visa is a visa of a particular class;

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

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

·        paragraph 46(2)(b) of the Act provides that the regulations may prescribe when the application referred to in paragraph 46(2)(a) is taken to have been validly made;

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

·        subsection 46(4) of the Act provides that 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;

·        subsection 93(1) of the Act provides that the regulations may prescribe the number of points for each of the prescribed qualifications for the purposes of assessment against a visa criterion; and

·        subsection 504(2) of the Act provides that despite section 14 of the Legislative Instruments Act 2003 the regulations may provide for matters to be specified by the Minister in an instrument in writing made after the commencement of the regulations.

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2006 (No. 6)

 

Regulation 1 – Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2006 (No. 6).

 

Regulation 2 – Commencement

 

This regulation provides that these Regulations commence on 1 October 2006.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that Schedules 1 to 4 to these Regulations 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 for a visa:

-         made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 October 2006; or

-         made on or after 1 October 2006.

 

Subregulation 4(2) provides that, subject to subregulation 4(3) below, the amendments made by Schedule 2 apply only in relation to an application for a visa made on or after 1 October 2006.

 

Subregulation 4(3) provides that the amendments made by items [50], [56] and [62] of Schedule 2 apply also in relation to an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 October 2006.

 

Subregulation 4(4) provides that the amendments made by Schedule 3 apply in relation to an application for a visa:

-         made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 October 2006; or

-         made on or after 1 October 2006.

 

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

 

Regulation 5 – Status of Gazette Notices

Regulation 5 provides that despite the amendment of a provision of the Principal Regulations specified in item [7] of Schedule 1 to these Regulations, a Gazette Notice that is:

-         made for that provision; and

-         in effect immediately before 1 October 2006;

is taken to continue in effect, on and after 1 October 2006, as if it were an instrument made for the provision as amended by item [7] of Schedule 1.

 

Schedule 1 – Amendments relating to general skilled migration visas

Item [1] – Regulation 1.15B

This item substitutes regulation 1.15B in Part 1 of Division 1.2 of the Principal Regulations with a new regulation 1.15B.

Subregulations 1.15B(1) to (3) have been redrafted to present the existing requirements in a clearer format. New subregulation 1.15B(4) is a new provision.

New subregulation 1.15B(1) provides that “vocational English” has the meanings given in subregulations (2), (3) and (4).

New subregulation 1.15B(2) sets out what “vocational English” means for a person who applied for a visa before 1 July 1999. Such a person has vocational English if the person satisfies the Minister that the person is proficient in English to at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6. These people do not need to sit an International English Language Testing System (IELTS) test. This provision mirrors what was previously in subregulation 1.15B(4) before being amended by this item.

New subregulation 1.15B(3) sets out what “vocational English” means for a person who applied for a visa on or after 1 July 1999. Such a person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted within the previous 12 months. This provision mirrors what was previously in paragraph 1.15B(3)(a) before being amended by this item.

New subregulation 1.15B(4) sets out that a person who applies for a visa on or after 1 July 1999, and does not have an IELTS test score achieved in the previous 12 months, may be taken to have vocational English if the Minister determines that it is not reasonably practicable or not necessary for the person to be tested using the IELTS test and the Minister is satisfied that the person is proficient in English to a standard that is not less than the standard required under new subregulation 1.15B(3).

The amendment clarifies that the discretion to find that it is not reasonably practicable or necessary for the person to be tested using the IELTS test is only available if the person does not have an IELTS test score achieved in the 12 months prior to the visa application or during the application process. The Minister’s discretion cannot be exercised in situations where the applicant has sat an IELTS test within the previous 12 months and failed to meet the score prescribed in new subregulation 1.15B(3).

Item [2] – Schedule 2, paragraphs 010.611(3A)(b) and (c)

This item omits paragraphs 010.611(3A)(b) and (c) in Part 010 (Bridging A (Class WA)) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the requirement for condition 8501 to be imposed on Bridging A visa granted on the basis that the applicant has made a valid application for a Skilled – Independent Overseas Student (Class DD) visa or a Skilled – Australian-sponsored Overseas Student (Class DE) visa. Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia. Holders of a Class DD visa or a Class DE visa have access to Medicare.

Item [3] – Schedule 2, paragraph 010.611(3A)(d)

This item amends paragraph 010.611(3A)(d) in Part 010 (Bridging A (Class WA)) of Schedule 2 to the Principal Regulations by omitting the word “visa;” and inserting the words “visa in relation to which the applicant met the requirements for subitem 1218A(5) of Schedule 1”.

The effect of this amendment is that condition 8501 must be applied to a Bridging A visa granted to a person who has made a valid application for a Graduate – Skilled (Temporary) (Class UQ) visa, or a Skilled – Independent Regional (Provisional) (Class UX) visa where the person met the requirements in subitem 1218A(5) of Schedule 1. Condition 8501 is applied in these circumstances as the applicant had condition 8501 attached to the visa they held at the time of application.

Condition 8501 provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia.

Item [4] – Schedule 2, subclause 020.611(3A)

This item substitutes subclause 020.611(3A) in Part 020 (Bridging B (Class WB)) of Schedule 2 to the Principal Regulations with new subclause 020.611(3A).

New subclause 020.611(3A) provides for condition 8501 to be imposed on a Bridging B visa granted to a person who satisfies subclause 020.211(2) or (3) on the basis of a valid application for a Graduate – Skilled (Temporary) (Class UQ) visa, or a Skilled - Independent Regional (Provisional) (Class UX) visa on the basis of meeting the requirements in subitem 1218A(5) of Schedule 1.

The effect of this amendment is that condition 8501, which provides that the visa holder must maintain adequate arrangements for health insurance while the holder is in Australia, will no longer be imposed on a Bridging B visa granted to a person who has made a valid application for a Skilled – Independent Overseas Student (Class DD) visa or a Skilled – Australian sponsored Overseas Student (Class DE) visa. These applicants have access to Medicare. However, condition 8501 will be applied to a person who was granted the Bridging B visa because they made a valid application for a Graduate – Skilled (Temporary) (Class UQ) visa, or a Skilled - Independent Regional (Provisional) (Class UX) visa and met the requirements in subitem 1218A(5).

Item [5] – Schedule 6A, Part 5, item 6A51, column 2, subparagraph (e)(iv)

This item omits “day” and inserts “day; and” in Part 5 (Spouse skill qualifications) of Schedule 6A to the Principal Regulations.

This is a consequential amendment as a result of the amendment made at item [6].

Item [6] – Schedule 6A, Part 5, item 6A51, column 2, after paragraph (e)

This item inserts new paragraph (f) in Part 5 (Spouse skill qualifications) of Schedule 6A to the Principal Regulations.

New paragraph (f) provides that the spouse of the applicant must not be an Australian permanent resident or an Australian citizen.

The effect of this amendment is to prevent the awarding of 5 points on the basis of spouse skill qualifications to an applicant whose spouse is an Australian permanent resident or an Australian citizen.

Item [7] – Further amendments relating to instruments

This item omits references to Gazette Notices in regulations 1.03, 2.26, 2.26B, 2.26C; items 1128AA, 1128B, 1128BA, 1128C, 1128CA, 1128D, 1134, 1212A, 1218A and 1226 in Schedule 1; Parts 134, 136, 137, 138, 139, 495, 496, 861, 862, 863, 880, 881, 882 and 883 of Schedule 2; Part 7, item 6701 of Schedule 6; and Parts 1, 4, 5, and 10 in Schedule 6A, and replaces them with references to instruments in writing.

Under the provisions of the Legislative Instruments Act 2003 (‘the LI Act’), all legislative instruments are required to be registered on the Federal Register of Legislative Instruments (‘the FRLI’). The LI Act also provides that Gazette Notices made under regulations that were in effect prior to 1 January 2005 and not amended since then are only required to be registered on the FRLI and additional publication in the Gazette is not required. As a consequence, it is no longer necessary to publish these instruments in the Gazette and therefore it is no longer appropriate to refer to them as ‘Gazette Notices’. The instruments are readily available and accessible on the FRLI.

Regulation 5 (Status of Gazette Notices) of these Regulations has the effect that all Gazette Notices made prior to these amendments will continue in effect as instruments in writing made under the relevant provision as amended by this item. These instruments are all available on the FRLI.

 

Schedule 2 – Further amendments relating to general skilled migration visas

 

Item [1] – Paragraph 2.26A(8)(b)

This item substitutes paragraph 2.26A(8)(b) of Division 2.6 in Part 2 of the Principal Regulations with new paragraph 2.26A(8)(b).

New paragraph 2.26A(8)(b) provides that a reference to a step-relationship is a reference to a step-relationship in which the applicant, or the applicant’s spouse, and the relevant step-relative of the applicant, or of the applicant’s spouse, have been members of the same family unit for a reasonable period.

The effect of this amendment is to provide that either the main applicant (that is, the applicant seeking to satisfy the primary criteria) or the spouse of the main applicant may have a step-relationship with the sponsor for purposes of the award of points for sponsorship under Part 9 of Schedule 6A to the Principal Regulations. Previously, sponsorship points could be awarded only on the basis of sponsorship by a step-relative of the main applicant. This amendment implements the policy intention that points may be awarded on the basis of the sponsor’s relationship with either the main applicant or the main applicant’s spouse, but that only the main applicant is to be assessed against age, skills and work experience criteria.

Item [2] – paragraph 2.27A(1)(b)

This item omits the word “class” from paragraph 2.27A(1)(b) in Part 2 of the Principal Regulations and substitutes the words “class; and”.

This is a technical amendment that allows the insertion of new paragraph 2.27A(1)(c) after paragraph 2.27A(1)(b) by item [3] below.

Item [3] – After paragraph 2.27A(1)(b)

This item inserts new paragraph 2.27A(1)(c) in Part 2 of the Principal Regulations.

New paragraph 2.27A(1)(c) provides that for regulation 2.27A to apply in respect of a visa application, the application must have been made prior to 1 October 2006.

The effect of this amendment is that the provisions of regulation 2.27A, under which an applicant for a Class BQ, DE or DB visa can receive points for a points assessment under Parts 1 to 8 and 10 of Schedule 6A to the Principal Regulations on the basis of the skills, age, work experience and Australian educational qualifications of his or her spouse, are now restricted to applicants who applied prior to 1 October 2006.

Item [4] - Schedule 1, after paragraph 1128AA(3)(aa)

This item inserts new paragraph 1128AA(3)(ab) in Item 1128AA (Skill Matching (Migrant) (Class BR)) of Schedule 1 to the Principal Regulations.

New paragraph 1128AA(3)(ab) requires that an applicant seeking to satisfy the primary criteria (that is, as a main applicant) for the grant of a Class BR visa must be less than 45 years of age.

The effect of this amendment is that for an application for a Class BR visa to be valid, the main applicant must be aged less than 45 years at the time of applying.

Item [5] – Schedule 1, paragraph 1128AA(3)(c)

This item substitutes paragraph 1128AA(3)(c) in Item 1128AA (Skill Matching (Migrant) (Class BR)) of Schedule 1 to the Principal Regulations with new paragraph 1128AA(3)(c).

New paragraph 1128AA(3)(c) requires that an application by a person who is seeking to satisfy the primary criteria for a Class BR visa must be accompanied by evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.

The effect of this amendment is that for an application for a Class BR visa to be valid, the main applicant must provide evidence that his or her skills have been assessed as suitable for the nominated occupation.

Item [6] - Schedule 1, after paragraph 1128B(3)(aa)

This item inserts new paragraph 1128B(3)(ab) in Item 1128B (Skilled – Australian-sponsored (Migrant) (Class BQ)) of Schedule 1 to the Principal Regulations.

New paragraph 1128B(3)(ab) requires that an applicant seeking to satisfy the primary criteria (that is, as a main applicant) must be less than 45 years of age.

The effect of this amendment is that for an application for a Class BQ visa to be valid, the main applicant must be aged less than 45 years at the time of applying.

Item [7] – Schedule 1, paragraph 1128B(3)(c)

This item substitutes paragraph 1128B(3)(c) in Item 1128B (Skilled – Australian-sponsored (Migrant) (Class BQ)) of Schedule 1 to the Principal Regulations with new paragraph 1128B(3)(c).

New paragraph 1128B(3)(c) requires that an application by a person who is seeking to satisfy the primary criteria must be accompanied by evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.

The effect of this amendment is that for an application for a Class BQ visa to be valid, the main applicant must provide evidence that his or her skills have been assessed as suitable for the nominated occupation.

Item [8] – Schedule 1, after paragraph 1128BA(3)(h)

This item inserts new paragraph 1128BA(3)(ha) in Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

New paragraph 1128BA(3)(ha) requires that an applicant seeking to satisfy the primary criteria (that is, a main applicant) must be less than 45 years of age.

The effect of this amendment is that for an application for a Class DE visa to be valid, the main applicant must be aged less than 45 years at the time of applying.

Item [9] – Schedule 1, paragraph 1128BA(3)(i)

This item omits the words “or the applicant’s spouse (if the spouse has made a combined application with the applicant)” from paragraph 1128BA(3)(i) in Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

The effect of this amendment is that in order to make a valid application for a Class DE visa, a main applicant must make a declaration that he or she is able to satisfy the requirements in paragraphs 1128BA(3)(j) and (ja) relating to the applicant’s age, work experience and skills. This reflects the policy intention to remove the ability of a main applicant to satisfy the age, work experience and skills criteria on the basis that the main applicant’s spouse has satisfied those criteria on the main applicant’s behalf.

Item [10] – Schedule 1, paragraph 1128BA(3)(j)

This item omits the words “(the former overseas student)” from paragraph 1128BA(3)(j) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

This amendment removes a redundant reference to “former overseas student” as only a main applicant (that is, an applicant seeking to satisfy the primary criteria) can meet the relevant requirements.

Item [11] – Schedule 1, subparagraph 1128BA(3)(j)(i)

This item omits subparagraph 1128BA(3)(j)(i) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

This amendment is to avoid duplication of the age requirement, following the amendments made by item [8], above.

Item [12] – Schedule 1, subparagraph 1128BA(3)(j)(ii)

This item substitutes the words “the former overseas student” from subparagraph 1128BA(3)(j)(ii) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations, with the words “he or she”.

This amendment is consequential to the removal of the redundant term “former overseas student” by item [10], above.

Item [13] – Schedule 1, subparagraph 1128BA(3)(j)(iii)

This item substitutes the words “the former overseas student” from subparagraph 1128BA(3)(j)(iii) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations with the words “he or she”.

This amendment is consequential to the removal of the redundant term “former overseas student” by item [10], above.

Item [14] – Schedule 1, subparagraph 1128BA(3)(j)(iv)

This item substitutes the words “the former overseas student’s” from subparagraph 1128BA(3)(j)(iv) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations with the words “his or her”.

This amendment is consequential to the removal of the redundant term “former overseas student” by item [10], above.

Item [15] – Schedule 1, paragraph 1128BA(3)(ja)

This item substitutes the words “who is a former overseas student for paragraph (j)” from paragraph 1128BA(3)(ja) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations with the words “to whom paragraph (j) applies”.

This amendment is consequential to the removal of the redundant term “former overseas student” by item [10], above.

Item [16] – Schedule 1, subparagraph 1128BA(3)(l)(iii)

This item inserts the words “, or the spouse of the applicant seeking to satisfy the primary criteria,” into subparagraph 1128BA(3)(l)(iii) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to provide that, in order for an application for a Class DE visa to be valid, the application must be accompanied by a declaration that either the main applicant or the spouse of the main applicant has an allowable family relationship with the sponsor. This provision previously allowed only the main applicant to have a family relationship with the sponsor, and not the spouse of that applicant as an alternative.

Item [17] – Schedule 1, paragraph 1128BA(3)(m)

This item inserts the words “, or the spouse of the applicant seeking to satisfy the primary criteria” into paragraph 1128BA(3)(m) of Item 1128BA (Skilled – Australian-sponsored Overseas Student (Residence) (Class DE)) of Schedule 1 to the Principal Regulations.

The purpose of this amendment is to provide that in order for an application for a Class DE visa to be valid, where the applicant is seeking to satisfy the primary criteria (the main applicant) for the grant of a Subclass 882 (Skilled – Designated Area-sponsored Overseas Student) visa, the application must be accompanied by a declaration by either the main applicant or by the main applicant’s spouse that the sponsor resides in a designated area and has resided in a designated area for 12 months prior to the date of the application. This provision was previously restricted to the main applicant.

The effect of this amendment is that the relevant declaration must now be made by either the main applicant or the main applicant’s spouse whoever has the family relationship with the sponsor.

Item [18] – Schedule 1, after paragraph 1128C(3)(aa)

This item inserts new paragraph 1128C(3)(ab) in Item 1128C (Skilled – Independent (Migrant) (Class BN)) in Schedule 1 to the Principal Regulations.

New paragraph 1128C(3)(ab) provides that except in the case of an applicant who is the holder of a Subclass 495 (Skilled – Independent Regional (Provisional)) visa and is seeking to satisfy the primary criteria for a Subclass 137 (Skilled – State/Territory-nominated Independent) visa, the applicant must be less than 45 years of age.

The effect of this amendment is that applicants for a Class BN visa who already hold a Subclass 495 (Skilled – Independent Regional (Provisional)) visa and who are seeking to satisfy the primary criteria for a Subclass 137 (Skilled – State/Territory-nominated Independent) visa, do not have to meet the age requirement in order to make a valid application for a Class BN visa. This is because these applicants have already satisfied an age requirement in order to be granted the Subclass 495 (Skilled – Independent Regional (Provisional)) visa.

Item [19] – Schedule 1, paragraph 1128C(3)(c)

This item substitutes paragraph 1128C(3)(c) in Item 1128C (Skilled – Independent (Migrant) (Class BN)) of Schedule 1 to the Principal Regulations with new paragraph 1128C(3)(c).

New subparagraph 1128C(3)(c) provides that unless the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa granted on the basis of satisfying the primary criteria, or is the holder of a Class UX visa granted on the basis that he or she was the spouse of the holder of a Class UX visa granted on the basis of satisfying the primary criteria, the application must be accompanied by evidence that a relevant assessing authority has assessed the skills of the applicant seeking to satisfy the primary criteria for the grant of a Subclass 136 (Skilled – Independent) or Subclass 137 (Skilled – State/Territory-nominated Independent) visa as suitable for his or her nominated skilled occupation.

The effect of this amendment is that for an application for a Class BN visa to be valid the main applicant, except in the case of certain applicants holding Class UX visas, must provide evidence that his or her skills have been assessed as suitable for the nominated occupation.

Item [20] – Schedule 1, after paragraph 1128D(3)(c)

This item inserts new paragraph 1128D(3)(ca) in Item 1128D (Skilled – New Zealand Citizen (Residence) (Class DB)) of Schedule 1 to the Principal Regulations.

New paragraph 1128D(3)(ca) requires that an applicant seeking to satisfy the primary criteria (that is, a main applicant) must be less than 45 years of age.

The effect of this amendment is that for an application for a Class DB visa to be valid, the main applicant must be aged less than 45 years at the time of applying.

Item [21] – Schedule 1, paragraph 1128D(3)(e)

This item substitutes paragraph 1128D(3)(e) in Item 1128D (Skilled – New Zealand Citizen (Residence) (Class DB) of Schedule 1 to the Principal Regulations with new paragraph 1128D(3)(e).

New paragraph 1128D(3)(e) requires that an application by a person who is seeking to satisfy the primary criteria for the Class DB must be accompanied by evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.

The effect of this amendment is that for an application for a Class DB visa to be valid, the main applicant must provide evidence that his or her skills have been assessed as suitable for the nominated occupation.

Item [22] – Schedule 1, sub-subparagraph 1218A(6)(a)(i)(A)

This item substitutes sub-subparagraph 1218A(6)(a)(i)(A) in Item 1218A (Skilled – Independent Regional (Provisional) (Class UX)) of Schedule 1 to the Principal Regulations with new sub-subparagraph 1218A(6)(a)(i)(A).

The effect of new sub-subparagraph 1218A(6)(a)(i)(A) is that in order to make a valid application for a Class UX visa on the basis of meeting the requirements in subitem 1218A(6), applicants seeking to satisfy the primary criteria (that is, main applicants) must provide a declaration that they are less than 45. Previously, this provision required the declaration to state that the applicant was at least 18 years and less than 45 years.

Item [23] – Schedule 1, paragraph 1218A(6)(b)

This item amends paragraph 1218A(6)(b) in Item 1218A (Skilled – Independent Regional (Provisional) (Class UX)) of Schedule 1 to the Principal Regulations by inserting the words “as suitable” after the words “skills of the applicant”.

The effect of this amendment is that to meet the requirements of subitem 1218A(6) for making a valid application for a Class UX visa, an applicant seeking to satisfy the primary criteria (that is, a main applicant) must submit a declaration that his or her skills have been assessed as suitable for the nominated occupation by a relevant assessing authority. Previously the applicant was required only to provide a declaration that his or her skills had been “assessed”, but not that the assessment was satisfactory.

Item [24] – Schedule 2, clause 134.211

This item omits clause 134.211 from Part 134 (Subclass 134 – Skill Matching) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 134 visa) and is consequential upon the insertion of the age requirement in Item 1128AA of Schedule 1 by item [4], above. It is now a requirement for making a valid application for a Skill Matching (Migrant) (Class BR) visa, of which Subclass 134 is a subclass, that an applicant seeking to satisfy the primary criteria must be less than 45.

Item [25] – Schedule 2, clause 136.211

This item omits clause 136.211 from Part 136 (Subclass 136 – Skilled – Independent) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 136 visa) and is consequential upon the insertion of the age requirement in Item 1128C of Schedule 1 by item [18], above. It is now a requirement for making a valid application for a Skilled – Independent (Migrant) (Class BN) visa, of which Subclass 136 is a subclass, that an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [26] – Schedule 2, clause 136.222

This item substitutes clause 136.222 in Part 136 (Subclass 136 – Skilled – Independent) of Schedule 2 to the Principal Regulations with new clause 136.222.

New clause 136.222 requires that if the skills assessment mentioned in paragraph 1128C(3)(c) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is to ensure that if an applicant is seeking to satisfy the primary criteria for a Subclass 136 visa on the basis of a qualification that was obtained in Australia while the applicant was the holder of a student visa, the course undertaken to obtain the qualification must have been a registered course. “Registered course” is defined in regulation 1.03 of the Principal Regulations to mean a course provided by an education provider that is registered under section 9 of the Education Services for Overseas Students Act 2000. A student visa is granted only to an applicant who is undertaking a registered course, in order to ensure that a quality course is provided to the student.

Item [27] – Schedule 2, clause 137.211

This item omits clause 137.211 from Part 137 (Subclass 137 – Skilled – State/Territory-nominated Independent) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 137 visa) and is consequential upon the insertion of the age requirement in Item 1128C of Schedule 1 by item [18], above. To make a valid application for a Skilled – Independent (Migrant) (Class BN) visa, of which Subclass 137 is a subclass, an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [28] – Schedule 2, clause 137.213

This item substitutes clause 137.213 in Part 137 (Subclass 137 – Skilled State/Territory-nominated Independent) of Schedule 2 to the Principal Regulations with new clause 137.213.

New clause 137.213 requires that if the skills assessment mentioned in paragraph 1128C(3)(c) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [29] – Schedule 2, clause 138.211

This item amends clause 138.211 in Part 138 (Subclass 138 – Skilled – Australian-sponsored) of Schedule 2 to the Principal Regulations by inserting the words “or the applicant’s spouse” after the word “applicant”.

The purpose of this amendment is to reflect the policy intention that either the main applicant or the main applicant’s spouse may have a family relationship with the sponsor.

Item [30] – Schedule 2, clause 138.214

This item omits clause 138.214 in Part 138 (Subclass 138 – Skilled – Australian-sponsored) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 138 visa) and is consequential upon the insertion of the age requirement in Item 1128B of Schedule 1 by item [6], above. To make a valid application for a Skilled – Australian-sponsored (Migrant) (Class BQ), of which Subclass 138 is a subclass, an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [31] – Schedule 2, clause 138.217

This item omits clause 138.217 from Part 138 (Subclass 138 – Skilled – Australian-sponsored) of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to remove the ability of a main applicant (that is, an applicant seeking to satisfy the primary criteria) to satisfy the age, work experience and skills criteria on the basis of the main applicant’s spouse satisfying those criteria. This amendment is consequential to the amendment made by item [3] above, which has the effect of restricting a main applicant’s ability to obtain points on the basis of a spouse’s age, work experience and skills factors to applications lodged prior to 1 October 2006. It should be noted that the removal of clause 138.217 applies only in respect of applications lodged on and after 1 October 2006, and that the effect of this clause will continue to apply in respect of applications lodged before that date.

Item [32] – Schedule 2, clause 138.224

This item substitutes clause 138.224 in Part 138 (Subclass 138 – Skilled – Australian-sponsored) of Schedule 2 to the Principal Regulations with new clause 138.224.

New clause 138.224 requires that if the skills assessment mentioned in paragraph 1128B(3)(c) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [33] – Schedule 2, paragraphs 495.215(d) and (e)

This item substitutes paragraphs 495.215(d) and (e) of Part 495 (Subclass 495 – Skilled – Independent Regional (Provisional)) of Schedule 2 to the Principal Regulations with new paragraphs 495.215(d) and (e).

New paragraph 495.215(d) provides that if a declaration was required to be made for sub-subparagraph 1218A(5)(f)(i)(B) of Schedule 1, the Minister must be satisfied that the declaration is true. The relevant declaration relates to the applicant having received an invitation from the Minister under regulation 2.08DA to apply for a Skilled – Independent Regional (Provisional) (Class UX) visa.

New paragraph 495.215(e) provides that if a declaration was required to be made for paragraph 1218A(5)(h), (k) or (l) of Schedule 1, the Minister is satisfied that the declaration is true. The relevant declarations relate to courses of study or training undertaken by the applicant.

The purpose of these amendments is to clarify that where an applicant makes declarations in order to meet requirements in Schedule 1 for a valid application for a Class UX visa, the criteria to be satisfied at time of application for the grant of a Subclass 495 visa are that the Minister must be satisfied that the declarations are true. These provisions previously required the Minister to be satisfied that “the applicant meets the requirements … for which the declaration was made”. However the amended wording, requiring that the declarations be true, is more appropriate and makes the policy intention clearer.

Item [34] – Schedule 2, clause 495.218

This item amends clause 495.218 in Part 495 (Subclass 495 – Skilled – Independent Regional (Provisional)) of Schedule 2 to the Principal Regulations, by inserting the words “as suitable” after the words “skills of the applicant”.

This amendment clarifies that the outcome of the skills assessment must be satisfactory for the criterion to be satisfied. Under the wording of the provision prior to this amendment, it was sufficient for the assessment to have been made irrespective of the result of the assessment.

Item [35] – Schedule 2, clause 495.219

This item amends clause 495.219 of Part 495 (Subclass 495 – Skilled – Independent regional (Provisional)) of Schedule 2 to the Principal Regulations, by replacing the words “the applicant meets the requirements of the paragraph for which the declaration was made” with the words “the declaration is true”.

The effect of this amendment is that the Minister must be satisfied that the relevant declarations, which relate to the applicant’s age or the fact that the Minister has invited the applicant under regulation 2.08DA to apply for a Skilled – Independent Regional (Provisional) (Class UX) visa, must be true. This wording is more appropriate than requiring that the declaration “meets the requirements of the paragraph for which it was made” and makes the policy intention clearer.

 

Item [36] – Schedule 2, paragraph 495.314(c)

This item substitutes paragraph 495.314(c) of Part 495 (Subclass 495 – Skilled – Independent Regional (Provisional)) of Schedule 2 to the Principal Regulations with new paragraph 495.314(c).

New paragraph 495.314(c) requires that if a declaration was required to be made for paragraph 1218A(5)(k) or (l) of Schedule 1, the Minister must be satisfied that the declaration is true.

The purpose and effect of this amendment is the same as for the amendments made to paragraphs 495.215(d) and (e) by item [33] above. For further details, please see the notes on that item.

Item [37] – Schedule 2, clause 496.225

This item substitutes clause 496.225 in Part 496 (Subclass 496 – Skilled – Designated Area-sponsored (Provisional)) of Schedule 2 to the Principal Regulations with new clause 496.225.

New clause 496.225 requires that if the skills assessment mentioned in paragraph 1226(3)(f) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [38] – Schedule 2, clause 861.211

This item omits clause 861.211 in Part 861 (Subclass 861 – Skilled – Onshore Independent New Zealand Citizen) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 861 visa) and is consequential to the insertion of the age requirement in Item 1128D of Schedule 1 by item [20] above. To make a valid application for a Skilled – New Zealand Citizen (Residence) (Class DB) visa, of which Subclass 861 is a subclass, an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [39] – Schedule 2, clause 861.222

This item substitutes clause 861.222 in Part 861 (Subclass 861 – Skilled – Onshore Independent New Zealand Citizen) of Schedule 2 to the Principal Regulations with new clause 861.222.

New clause 861.222 requires that if the assessment mentioned in paragraph 1128D(3)(e) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [40] – Schedule 2, clause 862.211

This item amends clause 862.211 in Part 862 (Subclass 862 – Skilled – Onshore Australian-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations, by inserting the words “or the applicant’s spouse” after the word “applicant”.

The purpose of this amendment is to reflect the policy intention that either the applicant seeking to satisfy the primary criteria (that is, the main applicant) or the main applicant’s spouse may have a family relationship with the sponsor.

Item [41] – Schedule 2, clause 862.214

This item omits clause 862.214 from Part 862 (Subclass 862 – Skilled – Onshore Australian-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 862 visa) and is consequential upon the insertion of the age requirement in Item 1128D of Schedule 1 by item [20] above. To make a valid application an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [42] – Schedule 2, clause 862.218

This item omits clause 862.218 from Part 862 (Subclass 862 – Skilled – Onshore Australian-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to remove the ability of a main applicant (that is, an applicant seeking to satisfy the primary criteria) to satisfy the age, work experience and skills criteria on the basis of the main applicant’s spouse satisfying those criteria. This amendment is consequential to the amendment made by item [3] above, which has the effect of restricting a main applicant’s ability to obtain points on the basis of a spouse’s age, work experience and skills factors to applications lodged prior to 1 October 2006. It should be noted that the removal of clause 862.218 applies only in respect of applications lodged on and after 1 October 2006, and that the effect of this clause will continue to apply in respect of applications lodged before that date.

Item [43] – Schedule 2, clause 862.224

This item substitutes clause 862.224 in Part 862 (Subclass 862 – Skilled – Onshore Australian-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations with new clause 862.224.

New clause 862.224 requires that if the assessment mentioned in paragraph 1128D(3)(e) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [44] – Schedule 2, clause 863.211

This item amends clause 863.211 in Part 863 (Subclass 863 – Skilled – Onshore Designated Area-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations, by inserting the words “or the applicant’s spouse” after the word “applicant”.

The purpose of this amendment is to reflect the policy intention that either the main applicant or the main applicant’s spouse may have a family relationship with the sponsor.

Item [45] – Schedule 2, clause 863.215

This item omits clause 863.215 from Part 863 (Subclass 863 – Skilled – Onshore Designated Area-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the age requirement from Schedule 2 (criteria for grant of a Subclass 863 visa) and is consequential upon the insertion of the age requirement in Item 1128D of Schedule 1 by item [20] above. To make a valid application an applicant seeking to satisfy the primary criteria must be less than 45 years of age.

Item [46] – Schedule 2, clause 863.218

This item omits clause 863.218 from Part 863 (Subclass 863 – Skilled – Onshore Designated Area-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to remove the ability of a main applicant to be deemed in certain circumstances to have satisfied the age, work experience and skills criteria on the basis of the applicant’s spouse having satisfied those criteria.

Item [47] – Schedule 2, clause 863.225

This item substitutes clause 863.225 in Part 863 (Subclass 863 – Skilled – Onshore Designated Area-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations with new clause 863.225.

New clause 863.225 provides that if the assessment mentioned in paragraph 1128D(3)(e) of Schedule 1 was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification must have been obtained as a result of full-time study of a registered course.

The purpose of this amendment is the same as for the amendment made to Subclass 136 by item [26] above. Please see the notes on that item for further details.

Item [48] – Schedule 2, clause 880.214

This item substitutes clause 880.214 in Part 880 (Subclass 880 – Skilled – Independent Overseas Student) of Schedule 2 to the Principal Regulations with new clause 880.214.

New clause 880.214 requires that the Minister must be satisfied that an applicant’s declaration under paragraph 1128CA(3)(l) of Schedule 1 is true.

Paragraph 1128CA(3)(l) requires an applicant to make a declaration about his or her courses of study or training. Prior to this amendment, clause 880.214 required the Minister to be satisfied “that the applicant meets the requirements of paragraph 1128CA(3)(1)”, but it is more appropriate to require that the Minister is satisfied that the declaration is true.

Item [49] – Schedule 2, clause 880.216

This item substitutes clause 880.216 in Part 880 (Subclass 880 – Skilled – Independent Overseas Student) of Schedule 2 to the Principal Regulations with new clause 880.216.

New clause 880.216 requires that if an applicant was required to make a declaration under paragraph 1128CA(3)(m) or (ma) of Schedule 1, the Minister must be satisfied that the declaration is true.

Prior to this amendment, clause 880.216 required that the Minister must be satisfied “that the applicant meets the requirements of the paragraph for which the declaration was made”. However, it is more appropriate to require that the Minister must be satisfied that the declaration is true.

Item [50] – Schedule 2, subclause 880.230(1)

This item amends subclause 880.230(1) of Part 880 (Subclass 880 – Skilled – Independent Overseas Student) of Schedule 2 to the Principal Regulations, by inserting after the word “occupation,” the words “and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular”.

The effect of this amendment is to insert a requirement that where a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, the Minister or delegate must be satisfied that no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading. The purpose of this amendment is to strengthen the relevant provisions against the risk of fraud.

Item [51] – Schedule 2, clause 880.313

This item substitutes clause 880.313 in Part 880 (Subclass 880 – Skilled – Independent Overseas Student) of Schedule 2 to the Principal Regulations with new clause 880.313.

New clause 880.313 requires that if an applicant was required to make a declaration under paragraph 1128CA(3)(m) or (ma) of Schedule 1, the Minister must be satisfied that the declaration is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [49] above. For further details, please see the notes on that item.

Item [52] – Schedule 2, clause 881.211

This item substitutes clause 881.211 in Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 881.211.

New clause 881.211 requires that the Minister must be satisfied that the applicant’s declaration under paragraph 1128BA(3)(i) of Schedule 1 is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [48] above. For further details, please see the notes on that item.

Item [53] – Schedule 2, clause 881.214

This item amends clause 881.214 in Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations by omitting the words “or the applicant’s spouse”.

This amendment reflects the policy intention that a main applicant can no longer satisfy criteria relating to qualifications on the basis of the qualifications of his or her spouse.

Item [54] – Schedule 2, clause 881.216

This item substitutes clause 881.216 in Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 881.216.

New clause 881.216 requires that if a declaration was required to be made for paragraph 1128BA(3)(p) or (pa) of Schedule 1, the Minister must be satisfied that the declaration is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [49] above. For further details, please see the notes on that item.

Item [55] – Schedule 2, clause 881.227

This item omits clause 881.227 from Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to remove the ability of a main applicant (that is, an applicant seeking to satisfy the primary criteria) to satisfy the age, work experience and skills criteria on the basis of the main applicant’s spouse satisfying those criteria. This amendment is consequential to the amendment made by item [3] above, which has the effect of restricting a main applicant’s ability to obtain points on the basis of a spouse’s age, work experience and skills factors to applications lodged prior to 1 October 2006. It should be noted that the removal of clause 881.227 applies only in respect of applications lodged on and after 1 October 2006, and that the effect of this clause will continue to apply in respect of applications lodged before that date.

Item [56] – Schedule 2, subclause 881.232(1)

This item amends subclause 881.232(1) of Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations, by inserting after the word “occupation,” the words “and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular”.

The effect of this amendment is to insert a requirement that where a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, the Minister or delegate must be satisfied that no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading. The purpose of this amendment is to strengthen the relevant provisions against the risk of fraud.

Item [57] – Schedule 2, clause 881.314

This item substitutes clause 881.314 in Part 881 (Subclass 881 – Skilled – Australian-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 881.314.

New clause 881.314 requires that if a declaration was required to be made for paragraph 1128BA(3)(p) or (pa) of Schedule 1, the Minister must be satisfied that the declaration is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [49] above. For further details, please see the notes on that item.

Item [58] – Schedule 2, clause 882.211

This item substitutes clause 882.211 in Part 882 (Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 882.211.

New clause 882.211 requires that the Minister must be satisfied that the applicant’s declaration under paragraph 1128BA(3)(i) of Schedule 1 is true.

The purpose and effect of this amendment are the same as for a similar amendment made to Subclass 880 by item [48] above. For further details, please see the notes on that item.

Item [59] – Schedule 2, clause 882.214

This item amends clause 882.214 in Part 881 (Subclass 881 – Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations by omitting the words “or the applicant’s spouse”.

This amendment reflects the policy intention that an applicant seeking to satisfy the primary criteria can no longer satisfy criteria relating to qualifications on the basis of the qualifications of his or her spouse.

Item [60] – Schedule 2, clause 882.216

This item substitutes clause 882.216 in Part 882 (Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 882.216.

New clause 882.216 requires that if a declaration was required to be made for paragraph 1128BA(3)(p) or (pa) of Schedule 1, the Minister must be satisfied that declaration is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [49] above. For further details, please see the notes on that item.

Item [61] – Schedule 2, clause 882.227

This item omits clause 882.227 from Part 882 (Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations.

This amendment reflects the policy intention that an applicant seeking to satisfy the primary criteria can no longer satisfy criteria relating to qualifications on the basis of the qualifications of his or her spouse.

Item [62] – Schedule 2, subclause 882.233(1)

This item amends subclause 882.233(1) of Part 882 (Subclass 882 – Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations, by inserting after the word “occupation,” the words “and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular”.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 881 by item [56] above. For further details, please see the notes on that item.

Item [63] – Schedule 2, clause 882.314

This item substitutes clause 882.314 in Part 882 (Subclass 882 – Skilled – Designated Area-sponsored Overseas Student) of Schedule 2 to the Principal Regulations with new clause 882.314.

New clause 882.314 provides that if a declaration was required to be made for paragraph 1128BA(3)(p) or (pa) of Schedule 1, the Minister must be satisfied that declaration is true.

The purpose and effect of this amendment are the same as for the amendment made to Subclass 880 by item [59] above. For further details, please see the notes on that item.

Item [64] – Schedule 6A, Part 9, item 6A91, column 2

This item omits the words “his or her:” from item 6A91 in Part 9 of Schedule 6A (General points test – qualifications and points) to the Principal Regulations and inserts the words “his or her, or his or her spouse’s:”.

The purpose of the amendment is to reflect the policy intention that either the applicant seeking to satisfy the primary criteria (that is, the main applicant) or the spouse of the main applicant may have an allowable family relationship with the sponsor.

Schedule 3 – Amendments relating to deemed applications for certain visas

 

Item [1] – Subparagraph 2.08C(1)(a)(iii)

This item renumbers subparagraph 2.08C(1)(a)(iii) in Part 2 of the Principal Regulations as subparagraph 2.08C(1)(a)(iv).

This amendment is to enable new subparagraph 2.08C(a)(iii) to be inserted by item [2], below.

Item [2] – After subparagraph 2.08C(1)(a)(ii)

This item inserts new subparagraph 2.08C(1)(a)(iii) in Part 2 of the Principal Regulations.

New subparagraph 2.08C(1)(a)(iii) inserts a reference to a Subclass Skilled – Australian-sponsored (Migrant) (Class BQ) visa.

The purpose of this amendment is to apply regulation 2.08C to applicants for a Skilled – Australian-sponsored (Migrant) (Class BQ) visa, with the effect that under certain circumstances those applicants will be taken also to have applied for an Employer Nomination (Migrant) (Class AN) and Labour Agreement (Migrant) (Class AU) visa.

Item [3] – Paragraph 2.08C(2)(a)

This item omits the words “Class AT, BN or BR visa; and” from paragraph 2.08C(2)(a) in Part 2 of the Principal Regulations and substitutes the words “Class AT, BN, BQ or BR visa; and”.

The purpose of paragraph 2.08C(2)(a) is to provide that an applicant to which regulation 2.08C applies must be less than 45 years old at the time of the application, in order to be deemed also to be an applicant for a Class AN or AU visa.

The effect of this amendment is to include applicants for a Skilled – Australian-sponsored (Migrant) (Class BQ) visa, together with applicants for Class AT, BN and BR visas who are currently covered by regulation 2.08C, as applicants who may meet the age requirement, that is, they are less than 45 years old at the time of the application and who may be deemed under regulation 2.08C also to have applied for a Class AN or AU visa.

This amendment is consequential to the inclusion by item [2], above, of applicants for a Class BQ visa as applicants to which regulation 2.08C applies.

Item [4] – Paragraph 2.08C(2)(b)

This item omits the words “Subclass 134 (Skill Matching) or Subclass 136 (Skilled – Independent) visa” from subparagraph 2.08C(2)(b) in Part 2 of the Principal Regulations, and substitutes the words “Subclass 134 (Skill Matching), Subclass 136 (Skilled – Independent) Subclass 138 (Skilled – Australian-sponsored) visa.”

New paragraph 2.08C(2)(b) provides that a requirement to be met by a relevant applicant in order to be deemed also to have applied for a Class AN or AU visa is that a decision to grant, or refuse to grant, to the applicant a Subclass 126 (Independent), Subclass 134 (Skill Matching), Subclass 136 (Skilled – Independent) or Subclass 138 (Skilled – Australian-sponsored) visa has not been made.

The effect of this amendment is to include that, for an application to be deemed an application for a Class AN or AU visa, no decision has been made to grant or refuse to grant the applicant a Subclass 138 (Skilled – Australian-sponsored) visa.

This amendment is consequential to the inclusion by item [2], above, of applicants for a Class BQ visa as applicants to which regulation 2.08C applies.

Item [5] – Subparagraph 2.08C(2)(d)(iii)

This item renumbers subparagraph 2.08C(2)(d)(iii) in Part 2 of the Principal Regulations as subparagraph 2.08C(2)(d)(iv).

The purpose of this amendment is to allow new subparagraph 2.08C(2)(d)(iii) to be inserted by item [6], below.

Item [6] – After subparagraph 2.08C(2)(d)(ii)

This item inserts new subparagraph 2.08C(2)(d)(iii) in Part 2 of the Principal Regulations.

New subparagraph 2.08C(2)(d)(iii) requires that an applicant for a Class BQ visa must have vocational English and a diploma or higher qualification, in order for the applicant to be taken under regulation 2.08C also to have applied for a Class AN or AU visa.

This amendment is consequential to the inclusion by item [2], above, of applicants for a Class BQ visa as applicants to which regulation 2.08C applies.

Item [7] – Subregulation 2.08C(5)

This item omits the words “an applicant for a Class AT, BN or BR visa:” from subregulation 2.08(5) in Part 2 of the Principal Regulations and substitutes the words “an applicant for a Class AT, BN, BQ or BR visa:”.

The effect of this amendment is to include applicants for a Class BQ visa as applicants who are taken, under subregulation 2.08C(4), to have applied also for an Employer Nomination (Migrant) (Class AN) visa on the day on which the Department of Immigration and Multicultural Affairs receives an employer nomination in respect of the applicant. Subregulation 2.08C(5) provides that the deemed Class AN visa application is taken to have been made outside Australia, and, in conjunction with the amendment made by item [8] below, that any person included in the Class BQ visa application as a member of the main applicant’s family unit, will also be taken to be included in the Class AN visa application.

Item [8] – Paragraph 2.08C(5)(b)

This item omits the words “a Class AT, BN or BR visa” from paragraph 2.08C(5)(b) in Part 2 of the Principal Regulations and substitutes the words “a Class AT, BN, BQ or BR visa”.

Paragraph 2.08C(5)(b) provides that any other person included in an applicant’s application for a Class AT, BN, BQ or BR visa is taken also to be included in the applicant’s deemed application for an Employer Nomination (Migrant) (Class AN) visa.

This amendment ensures that the provision of paragraph 2.08C(5)(b) covers applicants for a Class BQ visa who are taken under regulation 2.08C also to have applied for a Class AN visa. For further details, please see the notes on item [7], above.

Item [9] – Subregulation 2.08C(8)

This item omits the words “an applicant for a Class AT, BN or BR visa:” from subregulation 2.08C(8) in Part 2 of the Principal Regulations and substitutes the words “an applicant for a Class AT, BN, BQ or BR visa:”

The effect of this amendment is to include applicants for a Class BQ visa as applicants who are taken, under subregulation 2.08C(7), to have applied also for a Labour Agreement (Migrant) (Class AU) visa on the day on which the Department of Immigration and Multicultural Affairs receives evidence of the applicant’s appointment by an employer authorised under a labour agreement, RHQ agreement or IASS agreement to recruit employees. Subregulation 2.08C(8) provides that the deemed Class AU visa application is taken to have been made outside Australia, and, in conjunction with the amendment made by item [10] below, that any person included in the Class BQ visa application as a member of the main applicant’s family unit, will also be taken to be included in the Class AU visa application.

Item [10] – Paragraph 2.08C(8)(b)

This item omits the words “a Class AT, BN or BR visa” from paragraph 2.08C(8)(b) in Part 2 of the Principal Regulations and substitutes the words “a Class AT, BN, BQ or BR visa”.

Paragraph 2.08C(8)(b) provides that any other person included in an applicant’s application for a Class AT, BN, BQ or BR visa is taken also to be included in the applicant’s deemed application for a Labour Agreement (Migrant) (Class AU) visa.

This amendment ensures that the provision of paragraph 2.08C(8)(b) covers applicants for a Class BQ visa who are taken under regulation 2.08C also to have applied for a Class AU visa. For further details, please see the notes on item [9], above.

Item [11] – Regulation 2.08CB

This item substitutes regulation 2.08CB in Part 2 of the Principal Regulations with new regulations 2.08CB and 2.08CC.

New regulation 2.08CB (Certain applicants taken to have applied also for Employer Nomination (Residence) (Class BW) visas) provides that certain applicants for either a Class DD or a Class DE visa (on the basis of seeking to satisfy Subclass 881 (Skilled – Australian-sponsored) are taken also to have applied for an Employer Nomination (Residence) (Class BW) visa.

The effect of new regulation 2.08CB is to allow a deemed application for an Employer Nomination (Residence) (Class BW) visa to be taken to have been made by certain applicants for a Skilled – Australian-sponsored Overseas Student (Residence) (Class DE) visa. The amendment continues, as under regulation 2.08CB before being amended by this item, to allow deemed applications for a Class BW visa to be taken to have been made by certain applicants for a Skilled – Independent Overseas Student (Residence) (Class DD) visa.

The requirements for a Class BW visa application to be taken to have been made are that the applicant must have been nominated for employment in a position that meets the requirements of subregulation 5.19(4), the applicant must have been less than 45 years of age at the time of applying for a Class DD or DE visa and the application for the Class DD or DE visa must not have yet been decided when the employer nomination is received. In addition, the applicant must have vocational English and must hold a diploma or higher qualification. The application for a Class BW visa is taken to have been made on the day on which the Department of Immigration and Multicultural Affairs receives the relevant employment nomination, and is taken to include all persons included in the Class DD or DE application as members of the main applicant’s family unit.

New regulation 2.08CC (Certain applicants taken to have applied also for Labour Agreement (Residence) (Class BV) visas) provides that certain applicants for either a Class DD or a Class DE visa (on the basis of seeking to satisfy Subclass 881 (Skilled – Australian-sponsored) are taken also to have applied for a Labour Agreement (Residence) (Class BV) visa.

The effect of new regulation 2.08CC is to insert a new provision for a deemed application for a Labour Agreement (Residence) (Class BV) visa to be taken to have been made by certain applicants for Skilled – Independent Overseas Student (Residence) (Class DD) and Skilled – Australian-sponsored Overseas Student (Residence) (Class DE) visas also to be taken to have applied for a Class BV visa.

The requirements for a Class BV visa application to be taken to have been made are that the applicant must be seeking to enter Australia in accordance with a labour agreement, an RHQ agreement, or an IASS agreement. The applicant must also have been less than 45 years of age at the time of applying for a Class DD or DE visa, and the application for the Class DD or DE visa must not have yet been decided. In addition, the applicant must have vocational English and must hold a diploma or higher qualification. The application for a Class BV visa is taken to have been made on the day on which the Department of Immigration and Multicultural Affairs receives evidence of the applicant’s appointment by an employer authorised under a labour agreement, RHQ agreement or IASS agreement to recruit employees, and is taken to include all persons included in the Class DD or DE application as members of the main applicant’s family unit.

Item [12] – Schedule 1, paragraph 1121A(2)(a)

This item substitutes paragraph 1121A(2)(a) in Schedule 1 to the Principal Regulations with new paragraph 1121A(2)(a).

New paragraph 1121A(2)(a) provides that the first instalment of the visa application charge, payable at the time the application is made, in the case of an applicant who is taken under regulation 2.08CC to have applied for a Labour Agreement (Residence) (Class BV) visa is nil, and that in any other case the fee is $1,990.

The purpose of this amendment is to prevent applicants taken under new regulation 2.08CC to have applied for a Labour Agreement (Residence) (Class BV) from having to pay a first instalment of the visa application charge in respect of the deemed Class BV application. These applicants will have already paid a first instalment of the visa application charge in respect of the relevant Class DD or Class DE visa application. For further details please see the notes on item [11], above, which inserts new regulation 2.08CC in the Principal Regulations.

Item [13] – Schedule 2, paragraph 119.211(2)(c)

This item renumbers paragraph 119.211(2)(c) in Part 119 (Subclass 119 – Regional Sponsored Migration Scheme) of Schedule 2 to the Principal Regulations, as paragraph 119.211(2)(d).

The purpose of this amendment is to enable new paragraph 119.211(2)(c) to be inserted by item [14], below.

Item [14] – Schedule 2, after paragraph 119.211(2)(b)

This item inserts new paragraph 119.211(2)(c) in Part 119 (Subclass 119 – Regional Sponsored Migration Scheme) of Schedule 2 to the Principal Regulations.

New paragraph 119.211(2)(c) lists the criteria to be satisfied at time of application by an applicant for a Subclass 119 visa who is taken under regulation 2.08C to have applied for an Employer Nomination (Migrant) (Class AN) visa on the basis of having originally applied for a Skilled – Australian-sponsored (Migrant) (Class BQ) visa. (Provision for certain applicants for a Class BQ visa to be taken also to have applied also for a Class AN visa is inserted in regulation 2.08C of the Principal Regulations by items [1] to [10] above. Please see the notes on those items for further details.)

The criteria to be satisfied by these applicants are that they must not have turned 45 years of age at the time of application for the Class BQ visa, must have vocational English, and must hold a diploma or higher qualification that is (unless the appointment is exceptional) relevant to the appointment.

Item [15] – Schedule 2, before clause 121.211

This item inserts new clause 121.211A in Part 121 (Subclass 121 – Employer Nomination) of Schedule 2 to the Principal Regulations.

New clause 121.211A lists the criteria to be satisfied, at time of application, for the grant of a Subclass 121 visa to an applicant who is taken under regulation 2.08C of the Principal Regulations (as amended by items [1] to [10] of this Schedule to these Regulations, above) to have applied for an Employer Nomination (Migrant) (Class AN) visa on the basis of an appointment under an employer nomination. The criteria to be satisfied depend upon the class of visa the applicant originally applied for in order to be deemed under regulation 2.08C to have made the Class AN application.

New paragraph 121.211A(a) provides that if the applicant originally applied for an Independent (Migrant) (Class AT) visa, the applicant must not have turned 45 at the time of applying for that visa, must have functional English, and must hold a diploma or higher qualification that is (unless the appointment is exceptional) relevant to the appointment.

New paragraph 121.211A(b) provides that if the applicant originally applied for a Skilled – Independent (Migrant) (Class BN) visa, the applicant must not have turned 45 years of age at the time of applying for that visa, must have vocational English, and must hold a diploma or higher qualification that is (unless the appointment is exceptional) relevant to the appointment.

New paragraph 121.211A(c) provides that if the applicant originally applied for a Skilled – Australian-sponsored (Migrant) (Class BQ) visa, the applicant must not have turned 45 years of age at the time of applying for that visa, must have vocational English, and must hold a diploma or higher qualification that is (unless the appointment is exceptional) relevant to the appointment.

New paragraph 121.211A(d) provides that if the applicant originally applied for a Skill Matching (Migrant) (Class BR) visa, the applicant must not have turned 45 years of age at the time of applying for that visa, must have functional English, and must hold a diploma or higher qualification that is (unless the appointment is exceptional) relevant to the appointment.

Item [16] – Schedule 2, clause 121.211

This item omits clause 121.211 in Part 121 (Subclass 121 – Employer Nomination) of Schedule 2 to the Principal Regulations and inserts new clause 121.211.

New clause 121.211 provides that if new clause 121.211A does not apply, the criteria listed in clause 121.211 must be satisfied.

New clause 121.211A is inserted in the Principal Regulations by item [15] above, to provide for criteria to be satisfied at the time of application by applicants who are taken under regulation 2.08C (as amended by these Regulations) to have applied for a Class AN visa. Those applicants do not have to satisfy the criteria in clause 121.211. However, the criteria in clause 121.211 remain the same for all other applicants.

The effect of this amendment is to allow applicants for an Employer Nomination (Migrant) (Class AN) visa to satisfy time of application criteria if clause 121.211A does not apply.

Schedule 4 – Amendments relating to visa applications by holders of Skilled – Independent Regional (Provisional) (Class UX) visas

 

Item [1] – Schedule 1, paragraph 1114A(3)(ba)

This item substitutes paragraph 1114A(3)(ba) in Item 1114A (Employer Nomination) (Residence) (Class BW)) of Schedule 1 to the Principal Regulations with a new paragraph 1114A(3)(ba).

New paragraph 1114A(3)(ba) provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa, and the applicant seeks to satisfy the primary criteria for the grant of a Subclass 856 (Employer Nomination Scheme) or a Subclass 857 (Regional Sponsored Migration Scheme) visa, the applicant must have held 1 or more Skilled – Independent Regional (Provisional) (Class UX) visas for a total of at least 2 years.

This amendment removes the following words from subparagraph 1114A(3)(ba)(i) “granted on the basis that the applicant satisfied the primary criteria for the visa”. The effect is that a person who satisfied the secondary criteria for the grant of a Skilled Independent Regional visa (for instance, a spouse) must also meet this requirement if they are now seeking to become the main applicant for the permanent visa. For example, where the spouse completed the requirement to have worked in a regional area, the spouse may be the more appropriate applicant for the permanent visa.

This amendment makes the requirements consistent for Skilled – Independent Regional (Provisional) (Class UX) visa holders who are applying for certain permanent visas.

Item [2] – Schedule 1, after paragraph 1128AA(3)(d)

This item inserts new paragraph 1128AA(3)(e) in Item 1128AA (Skill Matching (Migrant) (Class BR)) of Schedule 1 to the Principal Regulations.

New paragraph 1128AA(3)(e) provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa and the applicant is seeking to satisfy the primary criteria for the grant of a Subclass 134 (Skill Matching) visa, the applicant must have held 1 or more Skilled – Independent Regional (Provisional) (Class UX) visas for a total of at least 2 years.

The effect of this amendment is to impose an additional requirement on certain persons who wish to apply for these permanent skilled visas. Applicants who hold a temporary Skilled Independent Regional visa and who are seeking a permanent Skill Matching visa as the main applicant (the person who meets the primary criteria) – must have held the temporary visa(s) for at least 2 years. The purpose of the temporary Skilled Independent Regional visa is to enable visa holders to remain and settle in Australia temporarily for at least 2 years before they can be eligible for a permanent visa. Persons holding those visas will therefore be prevented from applying for a permanent visa until they have fulfilled this requirement.

This amendment makes the requirements consistent for Skilled – Independent Regional (Provisional) (Class UX) visa holders who are applying for certain permanent visas.

Item [3] – Schedule 1, paragraph 1128C(3)(d)

This item substitutes paragraph 1128C(3)(d) in Item 1128C (Skilled – Independent) (Migrant) (Class BN)) of Schedule 1 to the Principal Regulations with a new paragraph 1128C(3)(d).

New paragraph 1128C(3)(d) provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa, and the applicant seeks to satisfy the primary criteria for the grant of a Subclass 136 (Skilled-Independent) or a Subclass 137 (Skilled – State/Territory-nominated Independent) visa, the applicant must have held 1 or more Skilled – Independent Regional (Provisional) (Class UX) visas for a total of at least 2 years.

This amendment is removes the following words from subparagraph 1128C(3)(d)(i) ‘granted on the basis that the applicant satisfied the primary criteria for the visa’. The effect is that a person who satisfied the secondary criteria for the grant of a Skilled Independent Regional visa (for instance, a spouse) must also meet this requirement if they are now seeking to become the main applicant for the permanent visa. For example, where the spouse has completed the requirement to have worked in a regional area, the spouse may be the more appropriate applicant for the permanent visa.

This amendment makes the requirements consistent for Skilled – Independent Regional (Provisional) (Class UX) visa holders who are applying for certain permanent visas.

Item [4] – Schedule 2, after clause 134.222C

This item inserts new clauses 134.222D, 134.222E and 134.222F into Part 134 (Subclass 134 - Skill Matching) of Schedule 2 to the Principal Regulations.

New clause 134.222D provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa or the last substantive visa held by the applicant since last entering Australia was a Skilled – Independent Regional (Provisional) (Class UX) visa, the applicant must have lived for at least two years in total in an area specified in an instrument in writing as a holder of a Skilled – Independent Regional (Provisional) (Class UX) visa, or a Bridging A (Class WA) or Bridging B (Class WB) visa granted because the applicant made a valid application for a Skilled – Independent Regional (Provisional) (Class UX) visa.

New clause 134.222E provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa or the last substantive visa held by the applicant since last entering Australia was a Skilled – Independent Regional (Provisional) (Class UX) visa, the applicant must have worked full time for at least 12 months in total in an area specified in an instrument in writing as a holder of a Skilled – Independent Regional (Provisional) (Class UX) visa, or a Bridging A (Class WA) or Bridging B (Class WB) visa granted because the applicant made a valid application for a Skilled – Independent Regional (Provisional) (Class UX) visa.

The effect of new clauses 134.222D and134.222E is to require that persons who hold or last held a temporary Skilled Independent Regional visa must have lived for 2 years and worked for 1 year in a specified regional area before they can be granted the permanent Skill Matching visa. The purpose of the temporary Skilled Independent Regional visa is to enable visa holders to settle in a regional area. Hence, those visa holders will be prevented from being granted the permanent visa until they have fulfilled this requirement.

New clause 134.222F provides that if the applicant is the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa, or the last substantive visa held by the applicant since last entering Australia was a Skilled – Independent Regional (Provisional) (Class UX) visa, the applicant must have complied with the conditions of that visa.

The effect of new clause 134.222F is to require persons who hold or last held a temporary Skilled Independent Regional visa to have complied with the conditions of that visa in order to be eligible for the permanent skilled visa. This ensures that a person who breached the conditions on their temporary visa cannot benefit by being granted the permanent visa.

Item [5] – Schedule 2, clause 137.212

This item omits clause 137.212 from Part 137 (Subclass 137 – Skilled – State/Territory-nominated Independent) of Schedule 2 to the Principal Regulations. This item makes a technical amendment to remove a redundant requirement from the Subclass 137 criteria.

Clause 137.212 requires the applicant to have nominated a skilled occupation in their visa application. This requirement is redundant because there is already a requirement that the applicant must have had their skills assessed as suitable for their nominated occupation before they can make a valid application for the visa.

 

Item [6] – Schedule 2, clause 137.215

This item substitutes clause 137.215 in Part 137 (Subclass 137 – Skilled – State/Territory-nominated Independent) of Schedule 2 to the Principal Regulations with new clauses 137.215 and 137.215A.

New clause 137.215 provides that if the applicant is the holder of a Skilled – Independent Regional (Class UX) visa (SIR visa) or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have lived for at least 2 years in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

New clause 137.215A provides that if the applicant is the holder of a SIR visa or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have worked full-time for at least 12 months in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

Prior to this amendment, clause 137.215 required an applicant to have lived for 2 years out of the previous 3, and to have worked for 1 year out of the previous 3, in a specified regional area, before the applicant could become eligible for the grant of a permanent Skilled – State/Territory-nominated Independent visa. This amendment does three things:

-         it removes the requirement that living and working in a specified regional area must have occurred within the previous 3 years. This means an applicant may count any 2 years living and any 1 year work regardless of whether or not it was within the previous 3 years;

-         it clarifies that living and working in a specified regional area must have occurred while the person held one or more temporary Skilled Independent Regional visas or associated bridging visas. This gives effect to the intention that the applicant can only count the working and living in a specified regional area while they held the temporary visa or associated bridging visas. It also recognises that a person may hold more than one temporary visa and associated bridging visa; and

-         it clarifies that the work must have been full-time work.

 

This amendment also restructures the requirements so that the living requirement is in new clause 137.215 and the work requirement is in new clause 137.215A.

Item [7] – Schedule 2, clause 495.210

This item amends clause 495.210 of Part 495 (Subclass 495 – Skilled – Independent Regional (Provisional)) of Schedule 2 to the Principal Regulations, by omitting a reference to paragraph 495.215(c).

Clause 495.210 sets out the criteria that a person who holds or who last held a Class UX visa must satisfy if they are seeking a further Class UX visa. (A Subclass 495 visa is a visa of Class UX.) This amendment removes the requirement that a person who holds or who last held a Class UX visa (that is, a Subclass 495 visa) must satisfy paragraph 495.215(c).

 

This is a technical amendment to correct an anomaly in the Principal Regulations. Paragraph 495.215(c) provides that the applicant only needs to satisfy this criterion if they meet the requirement in subitem 1218A(5) of Schedule 1 in order to make a valid application for a Class UX visa. Subitem 1218A(5) only applies to applicants who do not hold a Class UX visa or whose last substantive visa was not a Class UX visa.

 

New clause 495.210 therefore provides that for an applicant who is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, or in relation to whom the last substantive visa held by the applicant since last entering Australia was a visa of that kind, only clauses 495.213, 495.214 and 495.219A must be satisfied.

 

Item [8] – Schedule 2, paragraph 495.311(b)

This item substitutes paragraph 495.311(b) of Part 495 (Subclass 495 – Skilled – Independent Regional (Provisional)) of Schedule 2 to the Principal Regulations with new paragraph 495.311(b).

New paragraph 495.311(b) provides that the applicant must be a member of the family unit of a person who satisfies the primary criteria in Subdivision 495.21, and has made a combined application with that person, or a member of the family unit of a holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa. (A Subclass 495 visa is a visa of Class UX.)

 

The effect of this amendment is to insert the words “on the basis of satisfying the primary criteria for the grant of that visa” in paragraph 495.311(b). This has the purpose of ensuring that in order to satisfy the secondary criteria (to be satisfied by members of the family unit of a main applicant), an applicant must be a member of the family unit of a main applicant for the visa (that is, of an applicant who satisfies the primary criteria). Following this amendment, an applicant seeking to satisfy the secondary criteria cannot be a member of the family unit of a person who themselves satisfied the secondary criteria for the grant of the visa.

 

Item [9] – Schedule 2, clause 857.215

This item substitutes clause 857.215 in Part 857 (Subclass 857 – Regional Sponsored Migration Scheme) of Schedule 2 to the Principal Regulations with new clauses 857.215 and 857.215A.

New clause 857.215 provides that if the applicant is the holder of a Skilled – Independent Regional (Class UX) visa (SIR visa) or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have lived for at least 2 years in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

New clause 857.215A provides that if the applicant is the holder of a SIR visa or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have worked full-time for at least 12 months in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

 

Prior to this amendment, clause 857.215 required an applicant to have lived for 2 years out of the previous 3, and to have worked for 1 year out of the previous 3, in a specified regional area, before the applicant could become eligible for the grant of a permanent Skilled – State/Territory-nominated Independent visa. This amendment does three things:

-         it removes the requirement that living and working in a specified regional area must have occurred within the previous 3 years. This means an applicant may count any 2 years living and any 1 year work regardless of whether or not it was within the previous 3 years;

-         it clarifies that living and working in a specified regional area must have occurred while the person held one or more temporary Skilled Independent Regional visas or associated bridging visas. This gives effect to the intention that the applicant can only count the working and living in a specified regional area while they held the temporary visa or associated bridging visas. It also recognises that a person may hold more than one temporary visa and associated bridging visa; and

-         it clarifies that the work must have been full-time work.

 

This amendment also restructures the requirements so that the living requirement is in new clause 857.215 and the work requirement is in new clause 857.215A.

Item [10] – Schedule 2, clause 892.216

This item substitutes clause 892.216 in Part 892 (Subclass 892 – State/Territory Sponsored Business Owner) of Schedule 2 to the Principal Regulations with new clauses 892.216 and 892.216A.

New clause 892.216 provides that if the applicant is the holder of a Skilled – Independent Regional (Class UX) visa (SIR visa) or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have lived for at least 2 years in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

New clause 892.216A provides that if the applicant is the holder of a SIR visa or the last substantive visa held by the applicant since last entering Australia was a SIR visa, the applicant must have worked full-time for at least 12 months in total, as the holder of a one or more SIR visas, and Bridging A or Bridging B visas granted because the applicant made a valid application for a SIR visa.

Prior to this amendment, clause 892.216 required an applicant to have lived for 2 years out of the previous 3, and to have worked for 1 year out of the previous 3, in a specified regional area, before the applicant could become eligible for the grant of a permanent Skilled – State/Territory-nominated Independent visa. This amendment does three things:

-         it removes the requirement that living and working in a specified regional area must have occurred within the previous 3 years. This means an applicant may count any 2 years living and any 1 year work regardless of whether or not it was within the previous 3 years;

-         it clarifies that living and working in a specified regional area must have occurred while the person held one or more temporary Skilled Independent Regional visas or associated bridging visas. This gives effect to the intention that the applicant can only count the working and living in a specified regional area while they held the temporary visa or associated bridging visas. It also recognises that a person may hold more than one temporary visa and associated bridging visa; and

-         it clarifies that the work must have been full-time work.

 

This amendment also restructures the requirements so that the living requirement is in new clause 892.216 and the work requirement is in new clause 892.216A.