EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 354

 

Issued by the Minister for Immigration

and Multicultural Affairs

 

 

Subject - Migration Act 1958

 

Migration Amendment Regulations 2006 (No. 7)

 

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:

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

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

·        subsection 93(1) of the Act provides for regulations prescribing the number of points for each prescribed qualification for the purposes of assessing an applicant’s points score.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to provide that an applicant for a General Skilled Migration visa can only be sponsored by a relative of the applicant’s spouse when the applicant’s spouse is also an applicant for the relevant visa. These amendments correct an oversight created when the Principal Regulations were amended on 1 October 2006.

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on 1 January 2007.

 

Transitional provisions clarify that the amendments relating to visa application and grant criteria apply to applications made on and after 1 January 2007, and that the amendments in relation to an applicant’s points score apply in relation to all relevant points assessments made on and after 1 January 2007.

 

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 Office of Regulation Review in the Productivity Commission was consulted when the original amendments were made on 1 October 2007 and advised then 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 these Regulations as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 

 

 

 

ATTACHMENT

 

Details of the Migration Amendment Regulations 2006 (No. 7)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2006 (No. 7).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 January 2007.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

 

Regulation 4 – Transitional

Subregulation 4(1) provides that the amendments made by items [1] to [7] of Schedule 1 apply in relation to an application for a visa made on or after 1 January 2007.

Subregulation 4(2) provides that the amendment made by item [8] of Schedule 1 applies in relation to an assessment under subsection 93(1) of the Migration Act 1958 made on or after 1 January 2007.

Schedule 1 – Amendments

 

The amendments made by Schedule 1 correct the Principal Regulations to reflect the policy intention that an applicant for a General Skilled Migration visa seeking to satisfy the primary criteria can satisfy the criteria on the basis of being sponsored by a relative of his or her spouse only where the spouse is also an applicant for the same visa.

 

Sponsorship may generally be by: a parent; a child (other than a dependent child); a brother or sister; an aunt or uncle; or a nephew or niece of either the applicant seeking to satisfy the primary criteria or of that applicant’s spouse, provided the spouse is also an applicant for the visa.

 

Under the regulations as they existed until 1 October 2006, the applicant who was the actual relative of the sponsor was considered to be the applicant seeking to satisfy the primary criteria and was taken to have satisfied the criteria relating to age, qualifications and skills if those criteria could not be satisfied by the other applicant.

 

On 1 October 2006, the Migration Amendment Regulations 2006 (No. 6) amended these provisions with the effect that the applicant who satisfies the age, qualifications and skills criteria is always taken to be the applicant satisfying the primary criteria, but can satisfy the sponsorship requirements on the basis of sponsorship by either his or her own relative, or by a relative of the spouse. This is a much more straight forward and efficient approach as it avoids the concept of a sponsored applicant ‘satisfying’ the key primary criteria when in fact those criteria are satisfied by the spouse.

 

Unfortunately, however, by an oversight the amendments made on 1 October 2006 failed to include the requirement that sponsorship by a relative of a spouse is permitted only where the spouse is also an applicant for the same visa. These amendments correct that oversight. Details of the amendments made by particular items are as follows.

 

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

This item inserts the words “if the applicant’s spouse is an applicant for a Skilled – Australian-sponsored Overseas Student (Residence) (Class DE) visa,” after the words “the spouse of the applicant seeking to satisfy the primary criteria,” in subparagraph 1128BA(3)(l)(iii) in item 1128BA of Schedule 1 to the Principal Regulations.

The effect of this amendment is that an application for a Class DE visa will be valid if accompanied by a declaration that an applicant seeking to satisfy the primary criteria is sponsored by a person who is a specified relative of the applicant or the spouse of the applicant. If the sponsor is a relative of the spouse, the spouse must also be an applicant for a Class DE visa.

Item [2] – Schedule 1, paragraph 1128BA(3)(m)

This item omits the words “or the spouse of the applicant seeking to satisfy the primary criteria,” from paragraph 1128BA(3)(m) in item 1128BA of Schedule 1 to the Principal Regulations.

This amendment corrects an error in the Migration Amendment Regulations 2006 (No. 6) which inserted these words in paragraph 1128BA(3)(m) by oversight. The relevant declaration is required to be made only by the applicant, irrespective of whether sponsorship is by a relative of the applicant or of the applicant’s spouse.

Item [3] – Schedule 2, clause 138.211

This item inserts the words “if the applicant’s spouse is an applicant for a Subclass 138 visa,” after the word “spouse,” in clause 138.211 in Part 138 (Skilled – Australian- sponsored) of Schedule 2 to the Principal Regulations.

The effect of this amendment is that an applicant cannot satisfy the time of application primary criteria for the grant of a Subclass 138 (Skilled – Australian-sponsored) visa on the basis of sponsorship by a relative of the applicant’s spouse, unless the spouse is also an applicant for a Subclass 138 visas.

The following items [4], [5], [6] and [7] make similar amendments to the primary criteria relating to the respective visa subclasses:

Item [4] - Schedule 2, paragraph 496.212(c)

This item inserts the words “if the applicant’s spouse is an applicant for a Subclass 496 visa,” after the word “spouse,” in paragraph 496.212(c) in Part 496 (Skilled – Designated Area-sponsored (Provisional)) of Schedule 2 to the Principal Regulations.

Item [5] – Schedule 2, clause 862.211

This item inserts the words “if the applicant’s spouse is an applicant for a Subclass 862 visa,” after the word “spouse,” in clause 862.211 in Part 862 (Skilled – Onshore Australian-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

Item [6] – Schedule 2, clause 863.211

This item inserts the words “if the applicant’s spouse is an applicant for a Subclass 863 visa,” after the word “spouse,” in clause 863.211 in Part 863 (Skilled – Onshore Designated Area-sponsored New Zealand Citizen) of Schedule 2 to the Principal Regulations.

Item [7] – Schedule 2, paragraph 883.211(c)

This item inserts the words “if the applicant’s spouse is an applicant for a Subclass 883 visa,” after the word “spouse,” in clause 883.211(c) in Part 883 (Skilled – Designated Area-sponsored (Residence)) of Schedule 2 to the Principal Regulations.

Item [8] – Schedule 6A, Part 9, item 6A91

This item substitutes item 6A91 in Part 9 of Schedule 6A to the Principal Regulations with new item 6A91.

New item 6A91 amends the previous item 6A91 by adding, in column 2, the words “if the spouse is an applicant for the same subclass of visa” after the word “spouse” and in paragraph (d) of column 2 the words “or the applicant’s spouse;” after the word “applicant”.

The effect of these amendments is that if a points assessment is being made in relation to an applicant who is sponsored by a relative of the applicant’s spouse (including that spouse’s child, adoptive child or step-child, who is not a dependent child), the points specified in Column 3 of item 6A91 will not be available to the applicant unless the applicant’s spouse is also an applicant for the same subclass of visa.