EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 56

Issued by the Authority of the Minister

for Immigration and Citizenship

 

 

Migration Act 1958

 

Migration Amendment Regulations 2008 (No. 2)

 

 

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 Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make necessary changes to ensure the intended operation of immigration policy.

In particular, the Regulations:

·        Schedule 1: Make some minor policy changes and technical corrections to the General Skilled Migration (GSM) regulations which commenced on 1 September 2007;

·        Schedule 2: Provide a more flexible and targeted immigration solution to situations where children of non-citizen and non-permanent resident parents have been abandoned in Australia or are otherwise in vulnerable situations. The children are usually in the care of a State or Territory government welfare authority and do not meet the criteria for any current permanent residence visa. Schedule 2 also allows applicants who have a letter of support from a State or Territory government welfare authority to be eligible for a Subclass 802 (Child) visa (‘Child Visa’); and

·        Schedule 3: Permit all initial student visa holders to work once they have commenced a course of study, define the term “week” as it applies to student visa work conditions, and increase the student visa application charge by $20.

Details of the Regulations are set out in Attachment B.

All schedules to the Regulations commence on 26 April 2008. This commencement date is a consequence of various system changes necessary to allow for the implementation of the Regulations.

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

For all schedules the Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment was used to determine that there was no compliance cost to business.

In relation to amendments made by Schedule 2, formal consultation has been held with the Attorney General’s Department as well as State and Territory Government Welfare Authorities. These agencies are supportive of the proposal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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:

·        Subsections 29(2) and (3) of the Act, which provide that the regulations may provide a period during which the holder of a visa may travel to, enter and remain in Australia;

·        Subsection 31(1) of the Act, which provides that the regulations prescribe classes of visas;

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

·        Subsection 31(4) of the Act, which provides that the regulations may prescribe whether visas of a class or a class of visas are visas to travel to and enter Australia, or to remain in Australia or both;

·        Subsection 31(5) of the Act, which provides that the regulations specify that a visa is a visa of a particular class;

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

·        Subsection 40(2) pf the Act, which provides that without limiting subsection 40(1), the circumstances may be, or may include, that when the person is granted the visa, the person is inside or outside Australia;

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

·        Subsection 41(3) of the Act, which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;

·        Subsection 45A of the Act, which provides that the regulations may prescribe that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;

·        Subsection 45B(1) provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;

·        Subsection 45B(2) which provides that the amount of visa application charge prescribed may be nil;

·        Subsection 45C(1) of the Act, which provides that the regulations may provide that a visa application charge may be payable in instalments, how those instalments are to be calculated and specify when instalments are payable;

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

·        Subsection 46(2) of the Act, which provides that the regulations may provide that an application for a visa is valid if:

-         it is an application for a visa of a class prescribed for the purposes of this subsection; and

-         under the regulations, the application is taken to have been validly made.

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

·        Subsection 46(4) of the Act, which provides that the regulations may prescribe, without limiting subsection 46(3):

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

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

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

-         where an applicant must be when an application for a visa of a specified class is made;

·        Subsection 46(A)(1) of the Act, which provides that the regulations may provide that an application for a visa is not a valid application if it is made by an offshore entry person;

·        Subsection 73 of the Act, which provides that the regulations may provide that the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

-         during a specified period; or

-         until a specified event happens; and

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2008 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2008 (No. 2)

 

Regulation 2 – Commencement

 

This regulation provides that these Regulations commenced on 26 April 2008.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1. The amendments made by Schedule 1 apply in relation to an application for a visa made on or after 26 April 2008.

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

This regulation provides that the Principal Regulations are amended as set out in Schedule 2.

 

The amendments made by Schedule 2 apply in relation to an application for a visa made on or after 26 April 2008.

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

This regulation provides that the Principal Regulations are amended as set out in Schedule 3.

The amendments made by Schedule 3 apply in relation to an application for a visa made on or after 26 April 2008; or an application for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)), before 26 April 2008.

Schedule 1 – Technical amendments relating to General Skilled Migration visa classes and subclasses

Part 1 - Amendments of Part 1 of the Migration Regulations 1994

These changes amend the Principal Regulations to make minor policy changes and technical corrections to the General Skilled Migration (GSM) reforms which were introduced by the Migration Amendment Regulations 2007 (No. 7).

Item [1] – Regulation 1.03, definition of Australian permanent resident, after the note

This item amends regulation 1.03 of Part 1 to the Principal Regulations to include a definition of Australian Standard Classification of Occupations. The term is defined to mean the standard published by the Australian Bureau of Statistics.

The note following the definition provides the internet address at which the standard may be located. The note provides that at the time this regulation commenced, the standard can be found at http://www.abs.gov.au.

Item [2] – Regulation 1.03, definition of eligible student visa, subparagraph (b)(i)

This item amends regulation 1.03 of Part 1 to the Principal Regulations to substitute a new subparagraph 1.03(b)(i) in the definition of ‘eligible student visa’. Under new subparagraph (b)(i) of the definition of ‘eligible student visa’ in regulation 1.03, an ‘eligible student visa’ is any student visa other than a Subclass 562 (Iranian Postgraduate Student), 563 (Iranian Postgraduate Student Dependent), 572 (Vocational Education and Training Sector), 573 (Higher Education Sector) or 574 (Postgraduate Research Sector) visa granted to the applicant as a person who satisfied the primary criteria for the visa in relation to undertaking a course mentioned in sub-subparagraph (a)(i)(B) or (C) (the primary person).

The purpose of this amendment is to clarify that to make a valid application for a Skilled (Residence) (Class VB) or a Skilled (Provisional) (Class VC) visa on the basis of holding an eligible student visa, a person must not have been granted a specified student visa in relation to undertaking a course subsidised by a government or approved by the Defence Minister or AusAid.

Item [3] - Subregulation 1.15F(2)

This item substitutes a new subregulation 1.15F(2) into Division 1.2 of Part 1 to the Principal Regulations to define, for the purposes of subregulation 1.15F(1), that the term “completed” in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award. In addition, this item inserts a note following the definition clarifying that the academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of a degree, diploma or trade qualification. Therefore a person can complete a degree, diploma or trade qualification, for the purposes of regulation 1.15F, before the award is formally conferred.

This item also clarifies that the terms degree, diploma and trade qualification have the meanings given for those terms in subregulation 2.26A(6).

Item [4] – Subregulation 2.26AA(2)

This item omits the word ‘For’ from subregulation 2.26AA(2) of Part 2 of the Principal Regulations and inserts “Subject to subregulations 2.26AA(2A) and (2B) for” as a consequence of the insertion of a new subregulation 2.26AA(2A). See the amendments in item [5].

Item [5] – After subregulation 2.26AA(2)

This item inserts new subregulation 2.26AA(2A) and 2.26AA(2B) into Division 2.6 of Part 2 to the Principal Regulations. New subregulation 2.26AA(2A) provides that for the purposes of subregulation 2.26AA(2) if one or more qualifications in column 2 of Part 6B.11 and Part 6B.12 of Schedule 6B would apply in determining an applicant’s score, then only 1 of those items may apply in determining the points score in relation to any application for a visa.

The purpose of this amendment is to ensure that when assessing an applicant’s points score for a General Skilled Migration visa, if one or more qualifications apply to an applicant, points can only be awarded under either item 6B11 or item 6B12, but cannot be awarded under both. New subregulation 2.26AA(2B) clarifies that in applying an item under 2.26AA(2A), the item that provides the greater points score is to be used.

Item [6] – Subregulation 2.26AA(6), definitions of diploma and trade qualification

This item amends subregulation 2.26AA(6) of Division 2.6 of Part 1 to the Principal Regulations to omit the definitions of diploma and trade qualification for the purposes of Schedule 6B to the Principal Regulations.

The purpose of this amendment is to remove these definitions as the terms are not used in Schedule 6B and therefore do not need to be defined for the purposes of Schedule 6B.

Part 2 - Amendments of Schedule 1 to the Migration Regulations 1994.

Item [7] – Subparagraph 1121A(2)(b)(i)

This item omits “, (iv) and (v)” and inserts “and (iv),” in subparagraph 1121A(2)(b)(i) of Schedule 1 to the Principal Regulations. This is a consequential amendment made necessary by the removal of subparagraph 1121A(2)(b)(v), see item [9] below.

Item [8] – Subparagraph 1121A(2)(b)(ii)

This item omits “, (iv) and (v)” and inserts “and (iv),” in subparagraph 1121A(2)(b)(i) of Schedule 1 to the Principal Regulations. This is a consequential amendment made necessary by the removal of subparagraph 1121A(2)(b)(v), see item [9] below.

Item [9] – Subparagraph 1121A(2)(b)(v) and (vi)

This item omits subparagraphs 1121A(2)(b)(v) and 1121A(2)(b)(vi) and substitutes a new subparagraph 1121A(2)(b)(v) into Schedule 1 to the Principal Regulations. Current subparagraph 1121A(2)(b)(v) provides for certain applicants for a Labour Agreement (Residence) (Class BV) visa to pay a concessional second visa application charge. The intention is for these applicants to pay the full fee of $5735. The persons covered by current subparagraph 1121A(2)(b)(v) will fall within subparagraphs 1121A(2)(b)(i) and (ii) and pay the full visa application charge of $5735 (or $2860 if a secondary applicant).

New subparagraph 1121A(2)(b)(v) was formerly subparagraph 1121A(2)(b)(vi) and has been renumbered. This is a consequential amendment made necessary by the fact that current subparagraph 1121A(2)(b)(v) is omitted by this item.

Item [10] – Subparagraph 1229(4)(a)(ii)

This item inserts “at any time” before the words “during the period of six months” in subparagraph 1229(4)(a)(ii) of Schedule 1 to the Principal Regulations. The purpose of this amendment is to clarify that the applicant does not need to hold an eligible student visa continuously for the period of six months prior to the day on which the application for the Skilled (Provisional) (Class VC) visa is made. The applicant will meet the requirements of subparagraph 1229(4)(a)(ii) if they have held an eligible student visa at any time during the period of six months prior to the day on which the application is made for the Skilled (Provisional)(Class VC) visa is made.

Item [11] – Sub-subparagraph 1229(4)(a)(iii)(B)

This item inserts the words “at any time” before the words “during the period of six months” in sub-subparagraph 1229(4)(a)(iii)(B) of Schedule 1 to the Principal Regulations. The purpose of this amendment is to clarify that the applicant does not need to hold an eligible student visa continuously for the period of six months prior to the day on which the application for the Skilled (Provisional) (Class VC) visa is made. The applicant will meet the requirements of sub-subparagraph 1229(4)(a)(iii)(B) if they have held an eligible student visa at any time during the period of six months prior to the day on which the application for the Skilled (Provisional)(Class VC) visa is made.

Item [12] – Subparagraph 1229(7)(a)(ii)

This item substitutes current subparagraph 1229(7)(a)(ii) with a new subparagraph 1229(7)(a)(ii) in Schedule 1 to the Principal Regulations to clarify that the holder of an Occupational Trainee (Subclass 442) visa can only make a valid application for a Skilled (Provisional)(Class VC) visa if they have satisfied the primary criteria of the Occupational Trainee visa (Subclass 442) visa.

Item [13] – Sub-subparagraph 1136(2)(a)(i)(E)

This item substitutes current sub-subparagraph 1136(2)(a)(i)(E) of Schedule 1 to the Principal Regulations with a new sub-subparagraph 1136(2)(a)(i)(E). New sub-subparagraph 1136(2)(a)(i)(E) provides that an applicant for a Skilled (Residence) (Class VB) visa who holds a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for a Skilled – Independent Regional (Provisional)(Class UX) visa or a Skilled (Provisional)(Class VC) visa (other than a Subclass 485 visa), must pay a first instalment visa application charge of $190.

The purpose of this amendment is to clarify that if an applicant for a Skilled (Residence)(Class VB) visa holds a Bridging A (Class WA) or Bridging B (Class WB) visa on the basis of a valid application for a Skilled (Provisional)(Class VC) visa that is not a Subclass 485, the visa application charge is $190. If the person holds a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for a Skilled (Provisional)(Class VC) which is a Subclass 485, the applicant falls into the “any other case” category in subparagraph 1136(2)(a)(ii) and must pay $2060 for the first instalment of the visa application charge for a Skilled (Residence) (Class VB) visa.

Item [14] – Subparagraph 1136(4)(a)(ii)

This item inserts “at any time” before the words “during the period of six months” in subparagraph 1136(4)(a)(ii) of Schedule 1 to the Principal Regulations. The purpose of this amendment is to clarify that the applicant does not need to hold an eligible student visa continuously for the period of six months prior to the day on which the application for the Skilled (Residence) (Class VB) visa is made. The applicant will meet the requirements of subparagraph 1229(4)(a)(ii) if they have held an eligible student visa at any time during the period of six months prior to the day on which the application is made for the Skilled (Residence)(Class VB) visa is made.

Item [15] – Sub-subparagraph 1136(4)(a)(iii)(B)

This item inserts “at any time” after the words “during the period of six months” in sub-subparagraph 1136(4)(a)(iii)(B) of Schedule 1 to the Principal Regulations. The purpose of this amendment is to clarify that the applicant does not need to hold an eligible student visa continuously for the period of six months prior to the day on which the application for the Skilled (Residence) (Class VB) visa is made. The applicant will meet the requirements of sub-subparagraph 1136(4)(a)(iii)(B) if they have held an eligible student visa at any time during the period of six months prior to the day on which the application is made for the Skilled (Residence)(Class VB) visa is made.

Part 3 - Amendments of Schedule 2 to the Migration Regulations 1994

Item [16] – Paragraph 010.611(3B)(c)

This item substitutes current paragraph 010.611(3B)(c) of Part 010 of Schedule 2 to the Principal Regulations with a new paragraph 010.611(3B)(c). Current paragraph 010.611(3B)(c) provides that no conditions are imposed upon a non-citizen who meets the requirements of subclauses 010.211(2) or (3) on the basis of a valid application for a Skilled (Residence) (Class VB) visa. The intention, however, is that only certain applicants for a Skilled (Residence) (Class VB) visa should get a Bridging Visa A with no conditions.

New paragraph 010.611(3B)(c) clarifies that only applicants for a Skilled (Residence) (Class VB) visa who met the requirements of subitem 1136(4),(5) or (6) of Schedule 1 qualify for a Bridging A (Class WA) visa with no conditions i.e. applicants who held certain visas at time of application (e.g. eligible student visa, or Skilled – Graduate (Subclass 485) visa).

Item [17] – Subclause 010.611(4)

This item makes a technical amendment to subclause 010.611(4) of Part 010 of Schedule 2 to the Principal Regulations to add conditions 8539 and 8549 to the list of conditions which will apply to Bridging visa A if they applied to the visa held at time of application for the Bridging visa A. Conditions 8539 and 8549 provide that while the visa holder is in Australia, they must live, study and work only in an area specified by the Minister in an instrument in writing that is in force at the time the visa was granted or, if the visa holder has held another visa subject to the condition, when the first visa with that condition was granted.

Item [18] – Subclause 020.611(4)(c)

This item substitutes current paragraph 020.611(4)(c) of Part 020 of Schedule 2 to the Principal Regulations with a new paragraph 020.611(4)(c). Current paragraph 020.611(4)(c) provides that no conditions are imposed upon a non-citizen who meets the requirements of subclause 020.212(2) or 020.212(3) on the basis of a valid application for a Skilled (Residence) (Class VB) visa. The intention, however, is that only certain applicants for a Skilled (Residence)(Class VB) visa should get a Bridging Visa B with no conditions.

New paragraph 020.611(4)(c) clarifies that only applicants for a Skilled (Residence) (Class VB) visa who met the requirements of subitem 1136(4),(5) or (6) of Schedule 1 qualify for a Bridging B (Class WB) visa with no conditions i.e. applicants who held certain visas at time of application (e.g. eligible student visa, or Skilled – Graduate (Subclass 485) visa).

Item [19] – Subclause 020.611(5)

This item makes a technical amendment to subclause 020.611(5) of Part 020 of Schedule 2 to the Principal Regulations to add conditions 8539 and 8549 to the list of conditions which will apply to Bridging visa B if they applied to the visa held at time of application for the Bridging visa B. Conditions 8539 and 8549 provide that while the visa holder is in Australia, they must live, study and work only in an area specified by the Minister in an instrument in writing that is in force at the time the visa was granted or, if the visa holder has held another visa subject to the condition, when the first visa with that condition was granted.

Item [20] – Clause 175.111, notes 1 and 2

This item substitutes current notes 1 and 2 to clause 175.111 of Part 175 of Schedule 2 to the Principal Regulations with new notes 1 and 2. The effect of the new notes is to clarify that regulation 1.03 is the actual location for defining the terms 2 year study requirement and competent English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definitions.

Item [21] – Clause 175.111, note 6

This item substitutes new Note 6 to clause 175.111 of Part 175 of Schedule 2 to the Principal Regulations. The effect of the new note is to clarify that regulation 1.03 is the actual location for defining the term vocational English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [22] – Clause 176.111, notes 1 and 2

This item substitutes new notes 1 and 2 to clause 176.111 of Part 176 of Schedule 2 to the Principal Regulations. The effect of the new notes is to clarify that regulation 1.03 is the actual location for defining the terms 2 year study requirement and competent English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definitions.

Item [23] – Clause 176.111, note 6

This item substitutes new note 6 to clause 176.111 of Part 176 of Schedule 2 to the Principal Regulations. The effect of the new note is to clarify that regulation 1.03 is the actual location for defining the term vocational English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [24] – Clause 475.111, notes 1 to 6

This item substitutes new notes 1 to 7 for notes 1 to 6 in clause 475.111 of Part 475 of Schedule 2 to the Principal Regulations. The effect of the new notes is to clarify that regulation 1.03 is the actual location for defining the terms 2 year study requirement, competent English, concessional competent English, registered course, relevant assessing authority, skilled occupation, vocational English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definitions.

Item [25] – Clauses 475.411 and 475.412, not including the note

This item substitutes new clauses 475.411 and 475.412 of Part 475 of Schedule 2 to the Principal Regulations to amend the circumstances applicable to grant to cover circumstances where primary applicants and their family members make combined applications for subclass 475 visas.

Current clauses 475.411 and 475.412 allow holders of a Subclass 444 (Special Category) visa to have their visa granted inside or outside Australia, but all other applicants must be outside Australia at time of grant of a Subclass 475 visa.

New subclause 475.411(1) provides that where the primary applicant is the holder of a Subclass 444 (Special Category) visa, the primary applicant (and each applicant who made a combined application with the primary applicant) may be in or outside Australia. The purpose of this amendment is to provide a circumstance applicable to grant for primary applicants and secondary applicants who make a combined application, where the primary holds a Subclass 444 (Special Category) visa.

New subclause 475.411(2) provides that if the primary applicant is not the holder of a Subclass 444 (Special Category) visa, the primary applicant and each applicant who made a combined application with the primary applicant, must be outside Australia when the visa is granted.

Current clause 475.412 provides that in any other case, each applicant included in the application must be outside Australia. New clause 475.412 provides that in any other case, an applicant may be in or outside Australia when the visa is granted.

The purpose of this amendment is to clarify that in any other case, the applicant can be in or outside Australia. This amendment reflects the policy intention that secondary applicants who apply after the primary applicant can be inside or outside Australia when granted their visa. An example of such an applicant is a person who later joins a parent-primary visa holder in Australia. In this case, it is not necessary to make that applicant go offshore for the grant of a subclass 475 visa.

Item [26] – Clause 476.111, note

This item substitutes a new note to clause 476.111 of Part 476 of Schedule 2 to the Principal Regulations. The effect of the new note is to clarify that regulation 1.03 is the actual location for defining the term competent English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [27] – Clauses 476.411 and 476.412, not including the note

This item substitutes new clauses 476.411 and 476.412 of Part 476 of Schedule 2 to the Principal Regulations to amend the circumstances applicable to grant to cover circumstances where primary applicants and their family members make combined applications for subclass 476 visas.

Current clauses 476.411 and 475.412 allow holders of a Subclass 444 (Special Category) visa to have their visa granted inside or outside Australia, but all other applicants must be outside Australia at time of grant of a Subclass 476 visa.

New subclause 476.411(1) provides that where the primary applicant is the holder of a Subclass 444 (Special Category) visa, the primary applicant (and each applicant who made a combined application with the primary applicant) may be in or outside Australia. The purpose of this amendment is to provide a circumstance applicable to grant for primary applicants and secondary applicants who make a combined application, where the primary holds a Subclass 444 (Special Category) visa.

New subclause 476.411(2) provides that if the primary applicant is not the holder of a Subclass 444 (Special Category) visa, the primary applicant and each applicant who made a combined application with the primary applicant, must be outside Australia when the visa is granted.

Current clause 476.412 provides that in any other case, each applicant included in the application must be outside Australia. New clause 476.412 provides that in any other case, an applicant may be in or outside Australia when the visa is granted.

The purpose of this amendment is to clarify that in any other case, the applicant can be in or outside Australia. This amendment reflects the policy intention that secondary applicants who apply after the primary applicant can be inside or outside Australia when granted their visa. An example of such an applicant is a person who later joins a parent-primary visa holder in Australia. In this case, it would not be appropriate to make that applicant go offshore for the grant of a subclass 476 visa.

Item [28] – Clause 485.111, notes 1 and 2

This item substitutes new notes 1 and 2 to clause 485.111 of Part 485 of Schedule 2 to the Regulations. The effect of the new notes is to clarify that regulation 1.03 is the actual location for defining the terms 2 year study requirement and competent English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definitions.

Item [29] – Clause 485.111, note 6

This item substitutes new note 6 to clause 485.111 of Part 485 of Schedule 2 to the Principal Regulations. The effect of the new note is to clarify that regulation 1.03 is the actual location for defining the term vocational English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [30] – After clause 485.611

This item inserts a new clause 485.612 after clause 485.611 of Part 485 of Schedule 2 to the Principal Regulations. The effect of the new clause 485.611 is to clarify that where the applicant is outside Australia when the visa is granted, they must enter before the date specified by the Minister and they may be subject to condition 8515, which provides that the applicant may not marry before entry into Australia.

 

The purpose of allowing condition 8515 to be imposed is to ensure that any secondary applicant who is not the spouse of the primary applicant (for example a dependent child) continues to meet the requirements to be a ‘member of the family unit’. A change in marital status after an application would mean the applicant was no longer a member of the family unit and their visa application would be refused. The intention is that this condition should apply to secondary applicants who are not the spouse of the primary applicant (i.e. dependent child).

 

Item [31] – Clause 487.111, notes 1 and 2

This item substitutes current notes 1 and 2 with new notes 1, 2 and 3 in clause 487.111 of Part 487 of Schedule 2 to the Principal Regulations. The effect of the new notes is to clarify that regulation 1.03 is the actual location for defining the terms 2 year study requirement, competent English, competent concessional English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [32] – Clause 487.111, note 6

This item substitutes new note 6 to clause 487.111 of Part 487 of Schedule 2 to the Principal Regulations. The effect of the new note is to clarify that Regulation 1.03 is the actual location for defining the term vocational English even where the definition refers the reader to other relevant areas of the regulations for the full text of the definition.

Item [33] –Subparagraphs 487.227(a)(i) and (ii)

This item substitutes current paragraphs 487.227(a)(i) and (ii) of Part 487 of Schedule 2 to the Principal Regulations with new paragraphs 487.227(a)(i) and (ii). This item makes a minor technical correction to list the references to Subclass 495 (Skilled — Independent Regional (Provisional)) visa and Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) visa at the visa class level, to make this provision consistent with the rest of the Regulations.

Item [34] – Clause 487.228

This item substitutes a new clause 487.228 of Part 487 of Schedule 2 to the Principal Regulations for clause 487.228.

New clause 487.228 clarifies that if the applicant for a Subclass 487 (Skilled – Regional Sponsored) visa is the holder of a Skilled – Independent Regional (Provisional)(Class UX) visa; or a Skilled – Designated Area-sponsored (Provisional) (Class UZ) visa; or a Subclass 475 (Skilled – Regional Sponsored) visa; or a Subclass 487 (Skilled – Regional Sponsored) visa, that applicant only needs to meet public interest criterion 4007 (which includes a waiver) instead of public interest criterion 4005. This is because those applicants would have already satisfied the health requirement set out in public interest criteria 4005 to obtain the provisional visa.

Item [35] - Paragraphs 487.230 (d), (da) and (e)

This item substitutes paragraphs 487.230(d), (da) and (e) into Part 487 of Schedule 2 to the Principal Regulations with new paragraphs 487.230 (d), (e), (f) and (g) to clarify that if the applicant for a Subclass 487 (Skilled – Regional Sponsored) visa is the holder of a Skilled – Independent Regional (Provisional)(Class UX) visa; or a Skilled – Designated Area-sponsored (Provisional)(Class UZ) visa; or a Subclass 475 (Skilled – Regional Sponsored) visa; or a Subclass 487 (Skilled – Regional Sponsored) visa, then that applicant only needs to meet public interest criterion 4007 (which includes a waiver) instead of public interest criterion 4005. This is because those applicants would have already satisfied the health requirement set out in public interest criterion 4005 to obtain the provisional visa.

Item [36] - Paragraph 487.231(b)

This item substitutes paragraph 487.231(b) of Part 487 of Schedule 2 to the Principal Regulations with a new paragraph 487.231(b) to clarify that if the applicant for a Subclass 487 (Skilled – Regional Sponsored) visa is the holder of a Skilled – Independent Regional (Provisional )(Class UX) visa; or a Skilled – Designated Area-sponsored (Provisional)(Class UZ) visa; or a Subclass 475 (Skilled – Regional Sponsored) visa; or a Subclass 487 (Skilled – Regional Sponsored) visa that applicant only needs to meet public interest criterion 4007 unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion. In any other case, the applicant must satisfy public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

Item [37] – After clause 487.311

This item inserts a new clause 487.312 after clause 487.311 into Part 487 of Schedule 2 to the Principal Regulations.

New clause 487.312 provides that for the purposes of clause 487.311, and in addition to any other regulation, a person is the interdependent partner (or dependent child of the interdependent partner) of another person (primary applicant) if certain criteria are met.

The applicant will be an interdependent partner of the other person if the primary applicant is either an applicant or the holder of a Subclass 487 (Skilled – Regional Sponsored) visa and at time of application for the Subclass 487, the interdependent partner (or dependent child of interdependent partner) was the holder of a specified provisional visa granted on the basis of being the interdependent partner (or dependent child of the interdependent partner) of the primary applicant who satisfied the primary criteria for the grant of the provisional visa.

The purpose of this amendment is to ensure that an applicant who is seeking to meet the secondary criteria for the grant of a Subclass 487, who is also the holder of a specified provisional visa on the basis of being an interdependent partner (or dependent child of the interdependent partner) of the primary applicant, will not have to be reassessed as an interdependent partner or dependent child for the purposes of meeting the secondary criteria for the grant of a Subclass 487.

Item [38] - Clause 487.324

This item substitutes new clause 487.324 into Part 487 of Schedule 2 to the Regulations.

New clause 487.324 clarifies that if the applicant for a Subclass 487 (Skilled – Regional Sponsored) visa is the holder of a Skilled – Independent Regional (Provisional)(Class UX) visa; or a Skilled – Designated Area-sponsored (Provisional) (Class UZ) visa; or a Subclass 475 (Skilled – Regional Sponsored) visa; or a Subclass 487 (Skilled – Regional Sponsored) visa that applicant only needs to meet public interest criterion 4007 (which includes a waiver) instead of public interest criterion 4005. This is because those applicants would have already satisfied the health requirement set out in public interest criteria 4005 to obtain the provisional visa.

Item [39] – Subclause 487.511(1)

This item substitutes a new subclause 487.511(1) into Part 487 of Schedule 2 to the Principal Regulations. New subclause 487.511(1) provides that a visa granted to an applicant who satisfied the primary criteria who is in Australia at time of application and was the holder (at time of application) of a Subclass 487 (Skilled – Regional Sponsored) visa is the holder of a Skilled – Independent Regional (Provisional)(Class UX) visa; or a Skilled – Designated Area-sponsored (Provisional)(Class UZ) visa; or a Subclass 475 (Skilled – Regional Sponsored) visa; or a Subclass 487 (Skilled – Regional Sponsored) visa, is a temporary visa permitting the holder to travel to, enter and remain in Australia until 48 months after the date of grant of the visa held at time of application.

Item [40] –Paragraph 487.611(b)

This item omits paragraph 487.611(b) of Part 487 of Schedule 2 to the Principal Regulations. Paragraph 487.611(b) was removed because it was superfluous. Currently, holders of a Skilled – Regional Sponsored (Subclass 487) visa can only have their visa granted while they are onshore. Condition 8502 requires an applicant to be onshore at time of grant. As the applicant will already be onshore, this condition is superfluous.

Item [41] – Clause 820.313

This item substitutes a new clause 820.313 into Part 820 of Schedule 2 to the Principal Regulations with new clause 820.313.

The effect of new clause 820.313 is to add references to Subclass 475 (Skilled – Regional Sponsored) and Subclass 487 (Skilled – Regional Sponsored) visas, to the visas of which the conditions must have been substantially complied with by an applicant seeking to satisfy the secondary criterion to be met at the time of application for a Subclass 820 visa, if the applicant held one of those visas at the time of applying for a Subclass 820 visa or if the applicant’s last substantive visa was one of those visas.

Item [42] – Clause 826.213

This item substitutes clause 826.213 of Part 826 of Schedule 2 to the Principal Regulations with new clause 826.213. The effect of new clause 826.213 is to add references to new Subclass 475 (Skilled – Regional Sponsored) and Subclass 487 (Skilled – Regional Sponsored) visas, to the visas of which the conditions must have been substantially complied with by an applicant seeking to satisfy a primary criterion to be met at the time of application for a Subclass 820 visa, if the applicant held one of those visas at the time of applying for a Subclass 820 visa or if the applicant’s last substantive visa was one of those visas.

 

Item [43] – Clause 826.313

This item substitutes clause 826.313 of Part 826 of Schedule 2 to the Principal Regulations with new clause 826.313. The effect of new clause 826.313 is to add references to new Subclass 475 (Skilled – Regional Sponsored) and Subclass 487 (Skilled – Regional Sponsored) visas, to the visas of which the conditions must have been substantially complied with by an applicant seeking to satisfy a secondary criterion to be met at the time of application for a Subclass 826 visa, if the applicant held one of those visas at the time of applying for a Subclass 826 visa or if the applicant’s last substantive visa was one of those visas.

Item [44] – Paragraphs 887.221(1)(a) and (b)

This item substitutes current paragraphs 887.221(1)(a) and (b) of Part 887 of Schedule 2 to the Principal Regulations with new paragraphs 887.221(1)(a) and (b). This items makes a minor technical correction to list the visa classes UX and UZ in 887.221(1)(a) and (b) in alphabetical order.

Item [45] – Paragraphs 887.221(2)(a) and (b)

This item substitutes current paragraphs 887.221(2)(a) and (b) of Part 887 of Schedule 2 to the Principal Regulations with new paragraphs 887.221(2)(a) and (b). This item makes a minor technical correction to list the visa classes UX and UZ in 887.221(2)(a) and (b) in alphabetical order.

Item [46] – Subparagraphs 887.222(a)(i) and (ii)

This item substitutes current paragraphs 887.222(a)(i) and (ii) of Part 887 of Schedule 2 to the Principal Regulations with new paragraphs 887.222(a)(i) and (ii). This item makes a minor technical correction to list the references to Subclass 495 (Skilled — Independent Regional (Provisional)) visa and Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) at the visa class level, to make this provision consistent with the rest of the Regulations.

Item [47] – After clause 887.311

This item inserts a new clause 887.312 after clause 887.311 into Part 487 of Schedule 2 to the Principal Regulations.

New clause 887.312 provides that for the purposes of clause 887.311, and in addition to any other regulation, a person is the interdependent partner (or dependent child of the interdependent partner) of another person (primary applicant) if certain criteria are met.

The applicant will be an interdependent partner of the other person if the primary applicant is the applicant of a Subclass 887 (Skilled – Regional) visa and at time of application for the Subclass 887, the interdependent partner (or dependent child of interdependent partner) was the holder of a specified provisional visa granted on the basis of being the interdependent partner (or dependent child of the interdependent partner) of the primary applicant who satisfied the primary criteria for the grant of the provisional visa.

The purpose of this amendment is to ensure that an applicant who is seeking to meet the secondary criteria for the grant of a Subclass 887, who is also the holder of a specified provisional visa on the basis of being an interdependent partner (or dependent child of the interdependent partner) of the primary applicant, will not have to be reassessed as an interdependent partner or dependent child for the purposes of meeting the secondary criteria for the grant of a Subclass 887.

Part 4 – Amendments of Schedule 6B to the Migration Regulations 1994

Item [48] – Item 6B33

This item omits the current abbreviated reference to ASCO Major Group IV in item 6B33 of Schedule 6B to the Principal Regulations and inserts the full reference to Major Group IV of the Australian Standard Classification of Occupations.

Item [49] – Item 6B63, column 2

This item makes a minor technical amendment to omit the current reference to (second class (division 1) in item 6B63 of Schedule 6B to the Principal Regulations and inserts (Second Class (Division 1).

Item [50] – Item 6B101, column 2 subparagraph (f)(i)

This item makes a minor technical amendment to omit the word ‘Occupation’ and substitute the word ‘Occupations’ in the reference to Australian Standard Classification of Occupations to make it consistent with other parts of the Regulations where it is referenced.

Item [51] – Subparagraph 6B101(g)(i)

This item substitutes a new subparagraph 6B101(g)(i) to provide that in addition to meeting the two year study requirement referred to in sub-subparagraph 6B101(g)(i)(A), each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the spouse or interdependent partner’s nominated occupation. The effect of this amendment is that the spouse points will be brought into line with the criteria to be met by the primary applicant.

Item [52] – Further amendments – Australian Standard Classification of Occupations

This item makes a number of minor technical corrections to amend the references to Australian Standard Classification of Occupation, singular, to Australian Standard Classification of Occupations, plural, in:

¨      paragraph 175.213 (a)

¨      paragraph 176.213 (a)

¨      paragraph 475.214 (a)

¨      paragraph 485.215 (a)

¨      paragraph 485.222 (a)

¨      paragraph 487.215 (a)

¨      paragraph 487.224 (a)

¨      paragraph 885.213 (a)

¨      paragraph 886.213 (a).

Item [53] – Further amendments – Certain references to Subclass 485 (Skilled - Graduate) visas

This item makes a minor technical correction to remove the word “visa” from the following subparagraphs and sub-subparagraphs as it is superfluous and inconsistent with the form of other regulations:

¨      subparagraph 572.211 (2) (d) (iia);

¨      sub-subparagraph 572.227 (c) (iii) (BA);

¨      subparagraph 572.312 (2) (d) (iia);

¨      subparagraph 573.211 (2) (d) (iia);

¨      sub-subparagraph 573.227 (c) (iii) (BA);

¨      subparagraph 573.312 (2) (d) (iia);

¨      subparagraph 574.211 (2) (d) (iia);

¨      sub-subparagraph 574.227 (c) (iii) (BA);

¨      subparagraph 574.312 (2) (d) (iia).

Schedule 2 – Amendments relating to children

Item [1] – After regulation 1.20L

 

This item inserts new regulation 1.20LAA after regulation 1.20L of Division 1.4B of Part 1 of the Principal Regulations.

 

Division 1.4B of Part 1 of the Principal Regulations contains provisions that limit certain sponsorships and nominations in specified circumstances. In broad terms, new regulation 1.20LAA, operates to preclude a person previously granted a Subclass 802 (Child) visa from sponsoring his or her current or former parents to migrate to Australia, where that person provided a letter of support from a State or Territory government welfare authority (‘letter of support’) with his or her relevant Subclass 802 (Child) visa application.

 

The purpose of new regulation 1.20LAA is to discourage non-citizen parents from deliberately abandoning their children in Australia with the intention of later being sponsored by them to migrate to Australia, unless there are compelling circumstances.

 

New subregulation 1.20LAA(1) in Division 1.4B prescribes the exhaustive list of visa subclasses to which this particular sponsorship limitation is to apply. This list is as follows:

·         Subclass 103 (Parent) visa;

·         Subclass 114 (Aged Dependent Relative) visa;

·         Subclass 143 (Contributory Parent) visa;

·         Subclass 173 (Contributory Parent (Temporary)) visa;

·         Subclass 804 (Aged Parent) visa;

·         Subclass 838 (Aged Dependent Relative) visa;

·         Subclass 864 (Contributory Aged Parent) visa; or

·         Subclass 884 (Contributory Aged Parent (Temporary)) visa.

 

New subregulation 1.20LAA(2) provides that the Minister is precluded from approving the sponsorship of an applicant for a subclass of visa listed in subregulation 1.20LAA(1) when he or she is satisfied that the applicant for that visa is or was a parent of a holder or former holder of a Subclass 802 (Child) visa whose visa was granted on letter of support grounds, and the proposed sponsor for the applicant is:

·         the above referred Subclass 802 (Child) visa holder or former holder (that is, that same person who the Minister is satisfied is the child of the applicant);

·         a cohabitating spouse of that person referred to above;

·         the guardian of that person referred to above;

·         the guardian of a person who is a cohabitating spouse of that person referred to above; or

·         a community organisation.

 

New subregulation 1.20LAA(3) provides that, despite subregulation 1.20LAA(2), the Minister has a discretion to approve a sponsorship in such circumstances if the Minister is satisfied that there are compelling circumstances affecting the sponsor or applicant. It is the policy intention that such compelling circumstances may be in relation to the sponsor, or the applicant, or in relation to the sponsor and the applicant. That is, this discretion may be exercised by the Minister irrespective of whether the sponsor would have otherwise been prohibited from sponsoring the applicant under subregulation 1.20LAA(2).

 

New subregulation 1.20LAA(4) defines the term “letter of support” for the purpose of regulation 1.20LAA. The term “letter of support” is defined to mean a letter of support provided by a State or Territory government welfare authority with a number of prescribed characteristics. Paragraphs 1.20LAA(4)(a) to (e) lists these prescribed characteristics. This term is also defined in new subitem 1108A(5), as inserted by Item 5. The purpose of defining this term for the purposes of regulation 1.20LAA is to provide some specific parameters in relation to what documents are able to qualify as a letter of support under the legislation (that is, to negate the opportunity for potential misuse or exploitation).

 

The effect of the addition of new regulation 1.20LAA is to prohibit those persons who have been granted a Subclass 802 (Child) visa on letter of support grounds from acting as a sponsor for, or from assisting to facilitate the sponsorship in relation to, that person’s parents or former parents’ application to migrate to Australia under those subclasses of visa prescribed in subregulation 1.20LAA(1).

 

Item [2] – Schedule 1, sub-subparagraph 1108A(2)(a)(i)(B)

 

This item omits the reference to “subparagraph (ii) or (iv)” in sub-subparagraph 1108A(2)(a)(i)(B) in Schedule 1 to the Principal Regulations, and replaces it with the reference “subparagraph (ii) or (v)”.

 

Subparagraph 1108A(2)(a)(i) in Schedule 1 provides that no visa application charge is required to be paid at the time of application by an applicant for a Child (Residence) (Class BT) visa whose sibling is also applying for a Child (Residence) (Class BT) visa at the same time and place as that applicant.

 

This amendment is consequential to the amendment made by Item 3 which inserts new paragraphs 1108A(2)(a)(iv) and (v). Prior to the amendment made by Item 3, the content of new paragraph 1108A(2)(a)(v) was contained in paragraph 1108A(2)(a)(iv).

 

The effect of this amendment is to maintain the operation of the visa application charge exemption in relation to Child (Residence) (Class BT) visa applicants who are siblings.

 

Item [3] – Schedule 1, subparagraph 1108A(2)(a)(iv)

 

This item omits subparagraph 1108A(2)(a)(iv) in Schedule 1 to the Principal Regulations, and inserts new subparagraphs 1108A(2)(a)(iv) and (v).

 

Subitem 1108A(2) prescribes the visa application charge requirements for applicants for a Child (Residence) (Class BT) visa. Visa Class BT includes the Subclass 802 (Child) visa. New paragraph 1108A(2)(a)(iv) provides that where an application is supported by a letter of support from a State or Territory government welfare authority (‘letter of support’), no visa application charge is required.

 

The effect of this amendment is to provide that each applicant lodging an application for a Child (Residence) (Class BT) visa who provides a letter of support with his or her application is not required to pay a visa application charge.

 

The purpose of this amendment is to remove the financial cost from the application lodgement process for applicants whose visa application is supported by a letter of support. It is the policy intention that this category of applicant should not be required to pay the charge as they are likely to be without a parent or adult family member to care for them and are reliant on care overseen by the relevant State or Territory government welfare authority. That is, it is highly unlikely that these applicants would have access to finance of their own to meet the visa application charge cost.

 

The insertion of new paragraph 1108A(2)(a)(v) is a consequential amendment and made necessary by the insertion of new paragraph 1108A(2)(a)(iv). Prior to this amendment the content of new paragraph 1108A(2)(a)(v) was contained in paragraph 1108A(2)(a)(iv).

 

Item [4] – Schedule 1, paragraph 1108A(3)(c)

 

This item omits paragraph 1108A(3)(c) in Schedule 1 to the Principal Regulations and inserts new paragraphs 1108A(3)(c) and (d).

 

Paragraphs 1108A(3)(a) and (b) respectively prescribe where an application for a Child (Residence) (Class BT) visa must be lodged and where the applicant must be located at the time of lodgement. Current paragraph 1108A(3)(c) provides that an application by a person claiming to be a member of the family unit of a person who is an applicant for a Child (Residence) (Class BT) visa may be made at the same time and place as, and combined with, the application by that Child (Residence) (Class BT) visa applicant.

 

New paragraph 1108A(3)(c) preserves the previous operation of the provision in relation to applicants for a Child (Residence) (Class BT) visa that do not provide a letter of support from a State or Territory government welfare authority (‘letter of support’). New paragraph 1108A(3)(c) also provides that where a person’s application is supported by a letter of support, a member of his or her family unit is not able to make an application for a Child (Residence) (Class BT) visa at the same time and place as, and in combination with, the application of the person whose application is supported by a letter of support.

 

The effect of this amendment is to require all persons holding a letter of support who wish to apply for a Child (Residence) (Class BT) visa application, to apply in his or her own right, and to preclude family members from being attached to such applications.

 

The purpose of this amendment is to prevent persons from being able to make a valid application for a Child (Residence) (Class BT) visa without paying a visa application charge by claiming to be a family member of a person holding a letter of support who has made a valid application for a Child (Residence) (Class BT) visa.

 

Item [5] – Schedule 1, after subitem 1108A(4)

 

This item inserts new subitem 1108A(5) after subitem 1108A(4) in Schedule 1 to the Principal Regulations.

 

New subitem 1108A(5) defines the term “letter of support” for the purposes of Item 1108A in Schedule 1.

 

New subitem 1108A(5) defines “letter of support” for the purposes of an application for a Child (Residence) (Class BT) visa to mean a letter of support provided by a State or Territory government welfare authority with a number of prescribed characteristics. Paragraphs 1108A(5)(a) to 1108A(5)(e) then prescribe these requisite characteristics. These characteristics include (amongst others) that the relevant letter must detail the circumstances which led to the particular State or Territory government welfare authority becoming involved with the particular child and the reasons why that authority supports the child’s application for permanent migration to Australia, and be signed by a manager or director employed by a State or Territory government welfare authority.

 

The purpose of defining “letter of support” in respect of Item 1108A is to provide some specific parameters in relation to what documents are able to qualify as a letter of support under the legislation and thereby reduce the opportunity for potential misuse or exploitation. The letter of support also ensures the child’s circumstances have been thoroughly examined by the State or Territory government welfare authority.

 

Item [6] – Schedule 2, Division 802.1

 

This item replaces Division 802.1 of Schedule 2 to the Principal Regulations with a new Division 802.1

 

Prior to this amendment the only contents of Division 802.1 of Schedule 2 was a note that stated that no interpretation provisions contained in Part 802 are specific to that part, and also that the term “eligible New Zealand citizen” is defined in regulation 1.03.

 

New Division 802.1 contains an interpretation provision that defines the term “letter of support” for the purposes of Part 802 of Schedule 2. The term “letter of support” is defined in new Division 802.1 in relation to a child’s application for permanent residency in Australia to mean a letter of support provided by a State or Territory government welfare authority with a number of prescribed characteristics. Paragraphs 802.1(a) to (e) then prescribe these requisite characteristics. These characteristics include (amongst others) that the relevant letter must detail the circumstances which led to the particular State or Territory government welfare authority becoming involved with the particular child and the reasons why that authority supports the child’s application for permanent migration to Australia, and be signed by a manager or director employed by a State or Territory government welfare authority.

 

The purpose of defining “letter of support” in Division 802.1 for the purposes of Part 802 is to provide specific parameters in relation to what documents are able to qualify as a letter of support under the legislation and thereby reduce the opportunity for potential misuse or exploitation. The letter of support also ensures the child’s circumstances have been thoroughly examined by the State or Territory government welfare authority.

 

New Division 802.1 also retains a note previously contained in Division 802.1. The note advises that the term “eligible New Zealand citizens” is defined in regulation 1.03.

 

Item [7] – Schedule 2, Division 802.2, note

 

This item substitutes the note following the Division 802.2 heading in Part 802 of Schedule 2 to the Principal Regulations, with a new note.

Prior to the amendment made by this item the note informed the reader that the primary criteria must be satisfied by at least one member of a family unit in relation to a Subclass 802 (Child) visa application and that the other members of the family unit who are applicants for a visa of that subclass need satisfy only the secondary criteria.

The new note contains the same information as the previous note but also instructs the reader that where an application for a Subclass 802 (Child) visa is supported by a letter of support from a State or Territory government welfare authority, no member of the family unit is able to satisfy the secondary criteria unless regulation 2.08 applies. Regulation 2.08 relates to applications by children born to primary applicants after that primary applicant lodged his or her visa application (and before it was decided). Under regulation 2.08, if a newborn child’s application for a visa is combined with their parent’s application for a visa, the newborn child is only required to meet the time of decision criteria in Schedule 2 to the Principal Regulations for the relevant visa subclass.

The purpose of this amendment is to make it clear to the reader that all Subclass 802 (Child) visa applicants who provide a letter of support with their application, including any members of the family unit of the applicant, will need to meet the primary criteria unless they are a newborn child of the primary applicant and regulation 2.08 applies. That is, all members of the family unit of the primary applicant must also satisfy Subclass 802 (Child) visa primary criteria, including providing a letter of support of their own if they do not have a parent eligible and willing to sponsor them.

Item [8] Schedule 2, clause 802.215

 

This item substitutes clause 802.215 in Subdivision 802.21 of Division 802.2 of Schedule 2 to the Principal Regulations with new clause 802.215.

 

In brief terms, prior to the amendment made by this item, clause 802.215 required applicants for a Subclass 802 (Child) visa, at the time of application, to be:

• sponsored by a person who is 18 years of age or older and an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
• the “dependent child” (as defined in regulation 1.03), of that sponsor, or of the sponsor’s cohabitating spouse.

 

New clause 802.215 requires that an applicant for a Subclass 802 (Child) visa meet either the criteria as set out in previous clause 802.215, or alternatively, that the applicant is a person whose application is supported by a letter of support from a State or Territory government welfare authority (“letter of support”). Applicants with a letter of support are not required to satisfy the remaining time of application criteria in clauses 802.211 to 802.214 as a result of the amendment made by Item 9.

 

The effect of this amendment is to provide that the only time of application criteria required to be met by a primary applicant for a Subclass 802 (Child) visa whose application is supported by a letter of support, is the requirement that they provide that letter.

 

The purpose of this amendment is to take into account the circumstances of those children who are unable to meet sponsorship requirements but because of their situation they are being supported by a State or Territory government welfare authority. This is consistent with the policy intention that these particular visa applicants require a visa pathway (other than through Ministerial Intervention) to lawfully remain in Australia indefinitely.

 

Item [9] Schedule 2, after clause 802.215

 

This item inserts new clause 802.216 after clause 802.215 in Subdivision 802.21 of Division 802.2 of Schedule 2 to the Principal Regulations.

 

New clause 802.216 provides that clauses 802.211 to 802.214 are not required to be satisfied if the application for a visa is supported by a letter of support from a State or Territory government welfare authority (‘letter of support‘).

 

The effect of this amendment is to provide that the only time of application criteria required to be met by a person whose application is supported by a letter of support from a State or Territory government welfare authority (“letter of support”), is provided for in new clause 802.215 (as amended by Item 8). New clause 802.215, as amended by Item 8, requires the applicant to either be sponsored or have a letter of support.

 

The purpose of this amendment is to ensure that an applicant whose application is supported by a letter of support does not have to satisfy time of application criteria other than meeting the requirement that they have provided a letter of support. The policy rationale for this is that the criteria prescribed in clauses 802.211 to 802.214 are not considered relevant prerequisites for applicants whose applications are supported by a State or Territory government welfare authority.

 

Item [10] – Schedule 2, after clause 802.226

 

This item inserts new clause 802.226A after clause 802.226 in Subdivision 802.22 of Division 802.2 of Part 802 of Schedule 2 to the Principal Regulations.

 

Broadly, new clause 802.226A provides that, in respect of an applicant for a Subclass 802 (Child) visa whose application is supported by a letter of support from a State or Territory government welfare authority (“letter of support”):

·        that applicant is not required to satisfy clauses 802.221 to 802.226;

·         that applicant must satisfy public interest criteria 4001, 4002, 4003 and 4018;

·         the Minister must be satisfied that the grant of visa is in the public interest;

·         the Minister must be satisfied that a State or Territory government welfare authority supports the applicant’s application for permanent residency in Australia; and

·         that applicant has undergone a medical examination that meets certain requirements provided for in subclauses 802.226A(3), (4), (5) and (6).

 

The effect of this amendment is to require those applicants whose applications are supported by a letter of support to meet separate time of decision criteria from those applicants that do not provide a letter of support.

 

The purpose of this amendment is to accommodate specific requirements relevant to children who are supported by State or Territory government welfare authorities due to the complex nature of each child’s circumstances. These requirements also allow for the refusal of an application if the Minister is not satisfied that it is in the public interest to grant a visa to the child.

 

Item [11] – Schedule 2, Division 802.3, note

 

This item replaces the previous note after the heading for Division 802.3 of Part 802 of Schedule 2 with a new note.

 

The previous note informed the reader that if any members of the family unit satisfy the primary criteria, other members of that family unit are eligible for the grant of the visa if they satisfy secondary criteria and their applications are made prior to a final decision being made on the relevant family member’s application.

 

The new note replicates the content of the previous note but also states that, unless regulation 2.08 applies, secondary applicants must satisfy the primary criteria rather than the secondary criteria where the primary applicant’s application is supported by a letter of support from a State or Territory government welfare authority (‘letter of support’)

 

The purpose of this amendment is to ensure that it is clear in Division 802.3 that all applicants for Subclass 802 (Child) visa who provide a letter of support must satisfy the primary criteria for that subclass unless regulation 2.08 applies to that person.

 

Item [12] – Schedule 2, clause 802.311

 

This item substitutes clause 802.311 in Subdivision 802.31 of Division 802.3 of Schedule 2 to the Principal Regulations with new clause 802.311.

 

Prior to this amendment clause 802.311 provided that, at the time of application, the relevant secondary applicant must be a member of the family unit of a person who, on the basis of the information provided, appears to satisfy the time of application primary criteria, and the Minister has not yet made a decision to approve or refuse to approve the visa for that person.

 

New clause 802.311 replicates the content of the previous provision but adds the additional requirement that the relevant primary applicant (that is, the person to whom the secondary applicant is a member of the family unit of) is sponsored by a person who is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.

 

The effect of this amendment is to provide that in circumstances where the relevant member of the family unit meeting the primary criteria has provided a letter of support from a State or Territory government welfare authority with his or her application, no secondary applicant is able to meet the secondary time of application criteria. Instead these secondary applicants must satisfy the primary criteria in their own right.

 

The purpose of this amendment is to preclude members of the family unit from lodging an application in combination with an applicant whose application is supported by a letter of support from a State or Territory government welfare authority. The intention of these amendments is to only cater for children who are supported by a State or Territory government welfare authority, when there are no other care options for the child. Other family members of the child would need to lodge a separate application for a visa.

 

Item [13] – Schedule 2, after clause 802.326

 

This item inserts new clauses 802.327 and 802.328 after clause 802.326 in Subdivision 802.32 of Division 802.3 of Schedule 2 to the Principal Regulations.

 

New clause 802.327 provides that secondary applicants in respect of an application that is supported by a letter of support from a State or Territory government welfare authority (‘letter of support’) are not able to meet the time of decision secondary criteria prescribed in clauses 802.321 to 802.325.

 

The purpose of new clause 802.327 is to provide for separate time of decision criteria for members of the family unit of an applicant who has provided a letter of support with his or her application. That is, this ensures that the only way that a member of the family unit may meet the secondary criteria for grant is if they meet the requirements prescribed in new clause 802.328.

 

New clause 802.328 contains the secondary applicant time of decision criteria in respect of an application by a primary applicant that has provided a letter of support.

 

In brief terms, regulation 2.08 in Part 2 of the Principal Regulations provides that if a non-citizen applies for a visa and after the application is made, but before it is decided, a child other than a contributory parent newborn child, is born to that non-citizen, then:

• that child is taken to have applied for a visa of the same class at the time he or she was born; and
• the child's application is taken to be combined with the non-citizen's application.

 

New subclause 802.328 provides that if the secondary applicant is a person to whom regulation 2.08 applies, then that secondary applicant must:

• also provide a letter of support;
• be a member of the family unit of a person whose application is supported by a letter of support;
• satisfy public interest criteria 4018 (as prescribed in Part 1 of Schedule 4 to the Principal Regulations); and
• satisfy the health requirements provided for in new subclauses 802.328(2), (3), (4) and (5).

 

New subclause 802.328 also prescribes the requirement that the Minister must be satisfied that the grant of visa is in the public interest and the relevant State or Territory welfare authority supports the secondary applicants visa application.

 

The purpose of this amendment is to prescribe more appropriate criteria for visa grant in relation to secondary applicants that are born to the primary applicant after the primary applicant’s application was lodged and before it was decided. These requirements are designed for children who have been born to a child who is supported by State or Territory government welfare authority. These requirements also allow for the refusal of an application if the Minister is not satisfied that it is in the public interest to grant a visa to the newborn child.

 

Schedule 3 – Amendments relating to permission to work

 

Part 1 – Amendments of Schedule 1

 

Item [1] – Paragraph 1222(1)(b)

 

This item omits paragraph 1222(1)(b) of item 1222 of Schedule 1 to the Principal Regulations. Item 1222 provides the requirements which need to be met for a valid application for a Student (Temporary) (Class TU) visa.

The purpose of this amendment is to remove a duplicated “form requirement” from subitem 1222(1).

 

The form requirement in omitted paragraph 1222(1)(b) is duplicated in subparagraph 1222(1)(aa)(ii). Subparagraph 1222(1)(aa)(ii) requires an applicant who is in Australia and is included in a class of persons specified in a Gazette Notice must use either form 157P or 157P (Internet). The Gazette Notice for subparagraph 1222(aa)(ii) specifies two classes of student visa holders whose visa is subject to either condition 8101 or 8104 and who seek a student visa not subject to condition 8101.

 

Omitted paragraph 1222(1)(b), in effect, provided the same requirement, however, limited its application to Subclasses 560 (Student), 562 (Iranian Postgraduate Student) and 563 (Iranian Postgraduate Student Dependents) which were repealed from 1 July 2001. The form requirement in subparagraph 1222(1)(aa)(ii) applies to all “student visa” holders including persons who may still hold a Subclass 560, 562 and 563 visa. The term “student visa” is defined in regulation 1.03 of the Principal Regulations as meaning a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 whenever granted.

 

Condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) provides that the holder of a visa must not engage in work in Australia, and is commonly referred to as a “no work” condition. Condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations), prior to the amendments made by item [20] of this Schedule, provided that the visa holder must not engage in work for more than 20 hours a week while the holder is in Australia. New condition 8104, as subject to visas granted after the commencement of these amendments, is explained in the notes for item [20] below.

 

Item [2] – Subparagraph 1222(2)(a)(iv)

 

This item amends the visa application charge in subparagraph 1222(2)(a)(iv) of item 1222 of Schedule 1 to the Principal Regulations to increase it from $430 to $450.

 

Prior to these amendments, student visas were initially granted subject to condition 8101, which is the “no work” condition. Should the visa holder then wish to work, he or she would then need to apply for a new student visa not subject to condition 8101 and pay a further $60 visa application charge. The increase in the visa application charge has been introduced to partially offset the loss of revenue associated with the amendments made by this schedule which allow all student visa holders, whether it is an initial student visa or a subsequent visa, to work in Australia under condition 8104 or 8105 which allow limited rights to work.

 

However, after the commencement of the amendments made by this Schedule, any student visa holder whose visa is subject to condition 8101 will still be able pay the $60 visa application charge in accordance with subparagraph 1222(2)(a)(ii) when applying for a student visa not subject to this condition.

 

Part 2 – Amendments of Schedule 2

 

Item [3] – Clause 570.611

 

This item substitutes clause 570.611 of Part 570 of Schedule 2 to the Principal Regulations with new clause 570.611. Part 570 provides the criteria which must be satisfied for the grant of a Subclass 570 (Independent ELICOS Sector) visa.

 

Clause 570.611 generally states the conditions to which a Subclass 570 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

 

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 570.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 570.611(1)(b) and subclause 570.611(2).

Other than the above changes, the requirements in former paragraphs 570.611(1)(a), (d) and (e) are retained in new paragraphs 570.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 570 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 570.211(4) or previously held a student visa subject to condition 8105. Subclause 570.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [4] – Clause 570.617

 

This item substitutes clause 570.617 of Part 570 of Schedule 2 to the Principal Regulations with new clause 570.617. New clause 570.617 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 570.617 is that all Subclass 570 (Independent ELICOS Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 570 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 570 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        was the member of the family unit of a person who is the holder of a specified student visa and met the requirements of subclause 570.312(4); or

·        previously held a student visa subject to condition 8104.

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [5] – Clause 571.611

 

This item substitutes clause 571.611 of Part 571 of Schedule 2 to the Principal Regulations with new clause 571.611. Part 571 provides the criteria which must be satisfied for the grant of a Subclass 571 (Schools Sector) visa.

 

Clause 571.611 generally states the conditions to which a Subclass 571 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 571.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 571.611(1)(b) and subclause 571.611(2).

Other than the above changes, the requirements in former paragraphs 571.611(1)(a), (d) and (e) are retained in new paragraphs 570.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 571 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 571.211(4) or previously held a student visa subject to condition 8105. Subclause 571.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [6] – Clause 571.614

 

This item substitutes clause 571.614 of Part 571 of Schedule 2 to the Principal Regulations with new clause 571.614. New clause 571.614 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 571.614 is that all Subclass 571 (Schools Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 571 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 571 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        was the member of the family unit of a person who is the holder of a specified student visa and met the requirements of paragraph 571.312(4)(d); or

·        previously held a student visa subject to condition 8104.

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [7] – Clause 572.611

 

This item substitutes clause 572.611 of Part 572 of Schedule 2 to the Principal Regulations with new clause 572.611. Part 572 provides the criteria which must be satisfied for the grant of a Subclass 572 (Vocational Education and Training Sector) visa.

 

Clause 572.611 generally states the conditions to which a Subclass 572 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 572.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 572.611(1)(b) and subclause 570.611(2).

Other than the above changes, the requirements in former paragraphs 572.611(1)(a), (d) and (e) are retained in new paragraphs 572.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 572 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 572.211(4) or previously held a student visa subject to condition 8105. Subclause 572.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [8] – Clause 572.617

 

This item substitutes clause 572.617 of Part 572 of Schedule 2 to the Principal Regulations with new clause 572.617. New clause 572.617 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 572.617 is that all Subclass 572 (Vocational Education and Training Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 572 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 572 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        was the member of the family unit of a person who is the holder of a specified student visa and met the requirements of paragraph 572.312(4)(d); or

·        previously held a student visa subject to condition 8104.

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [9] – Clause 573.611

 

This item substitutes clause 573.611 of Part 573 of Schedule 2 to the Principal Regulations with new clause 573.611. Part 573 provides the criteria which must be satisfied for the grant of a Subclass 573 (Higher Education Sector) visa.

 

Clause 573.611 generally states the conditions to which a Subclass 573 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

 

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 573.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 573.611(1)(b) and subclause 573.611(2).

Other than the above changes, the requirements in former paragraphs 573.611(1)(a), (d) and (e) are retained in new paragraphs 573.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 573 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 573.211(4) or previously held a student visa subject to condition 8105. Subclause 573.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [10] – Clause 573.617

 

This item substitutes clause 573.617 of Part 573 of Schedule 2 to the Principal Regulations with new clause 573.617. New clause 573.617 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 573.617 is that all Subclass 573 (Higher Education Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 573 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 573 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        was the member of the family unit of a person who is the holder of a specified student visa and met the requirements of paragraph 573.312(4)(d); or

·        previously held a student visa subject to condition 8104.

In addition, former subclause 573.617(3) provided that condition 8101 or 8104 were not imposed generally when the “primary person” who is the holder of a relevant student visa who satisfied the primary criteria, and in relation to whom the applicant is a member of the family unit, has commenced a course of study for the award of a masters degree by coursework. Following the amendment made by this item, all visas granted to applicants who satisfy the secondary criteria will be subject to condition 8104. However, amendments made by item [20] of this Schedule to condition 8104 result in no detriment to applicants who would have previously met the requirements in former subclause 573.617(3).

 

Generally, the effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [12] – Clause 574.611

 

This item substitutes clause 574.611 of Part 574 of Schedule 2 to the Principal Regulations with new clause 574.611. Part 574 provides the criteria which must be satisfied for the grant of a Subclass 574 (Postgraduate Research Sector) visa.

 

Clause 574.611 generally states the conditions to which a Subclass 574 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 574.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 574.611(1)(b) and subclause 574.611(2).

Other than the above changes, the requirements in former paragraphs 574.611(1)(a), (d) and (e) are retained in new paragraphs 574.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 574 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 574.211(4) or previously held a student visa subject to condition 8105. Subclause 574.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [13] – Paragraph 574.616(1)(d)

 

This item omits paragraph 574.616(1)(d) of Part 574 of Schedule 2 to the Principal Regulations.

The purpose of this amendment is to remove the requirement that a Subclass 574 (Postgraduate Research Sector) visa granted to an applicant who satisfies the primary criteria is to be subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) unless clause 574.617 or 574.618 apply to the applicant. Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Item [14] – Clause 574.617

 

This item substitutes clause 574.617 of Part 574 of Schedule 2 to the Principal Regulations with new clause 574.617. New clause 574.617 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 574.617 is that all Subclass 574 (Postgraduate Research Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 574 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, former subclause 574.617 provided that condition 8101 or 8104 were not imposed generally when the “primary person” who is the holder of a relevant student visa who satisfied the primary criteria, and in relation to whom the applicant is a member of the family unit, has commenced a course of study for the award of a masters or doctorate degree. Following the amendment made by this item, all visas granted to applicants who satisfy the secondary criteria will be subject to condition 8104. However, amendments made by item [20] of this Schedule to condition 8104 result in no detriment to applicants who would have previously met the requirements in former clause 574.617.

 

Generally, the effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [15] – Clause 574.618

 

This item omits clause 574.618 of Part 574 of Schedule 2 to the Principal Regulations. This amendment is consequential to the amendment made by item [14] of this Schedule above which make former clause 574.618 redundant.

Previously, clause 574.618 imposed condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations) where:

 

·        was the member of the family unit of a person who is the holder of a specified student visa and met the requirements of subclause 574.312(4); or

·        previously held a student visa subject to condition 8104.

Item [16] – Clause 575.611

 

This item substitutes clause 575.611 of Part 575 of Schedule 2 to the Principal Regulations with new clause 575.611. Part 575 provides the criteria which must be satisfied for the grant of a Subclass 575 (Non-Award Sector) visa.

 

Clause 575.611 generally states the conditions to which a Subclass 575 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

 

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 575.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 575.611(1)(b) and subclause 575.611(2).

Other than the above changes, the requirements in former paragraphs 575.611(1)(a), (d) and (e) are retained in new paragraphs 575.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 575 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 575.211(4) or previously held a student visa subject to condition 8105. Subclause 575.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [17] – Clause 575.617

 

This item substitutes clause 575.617 of Part 575 of Schedule 2 to the Principal Regulations with new clause 575.617. New clause 575.617 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 575.617 is that all Subclass 575 (Non-Award Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 575 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 575 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        previously held a student visa subject to condition 8104;

·        was the member of the family unit of a person who is the holder of a student visa as described in either former paragraphs 575.617(1)(b) or (c)and met the requirements of paragraph 575.312(4)(d).

Generally, the effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [18] – Clause 576.611

 

This item substitutes clause 576.611 of Part 576 of Schedule 2 to the Principal Regulations with new clause 576.611. Part 576 provides the criteria which must be satisfied for the grant of a Subclass 576 (AusAID or Defence Sector) visa.

 

Clause 576.611 generally states the conditions to which a Subclass 576 visa is subject where the applicant satisfies the primary criteria. The effect of this amendment is to:

 

·        include as a mandatory condition 8105 (clause 8105 of Schedule 8 to the Principal Regulations) in new paragraph 576.611(a); and

·        remove the requirement that generally all initial student visas held are subject to condition 8101 (clause 8101 of Schedule 8 to the Principal Regulations) previously in former paragraph 576.611(1)(b) and subclause 576.611(2).

Other than the above changes, the requirements in former paragraphs 576.611(1)(a), (d) and (e) are retained in new paragraphs 576.611(a), (d) and (e).

Condition 8105 provides that a visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session. Condition 8105 is amended by items [21] and [22] of this Schedule to provide that the holder must not engage in any work in Australia before the holder’s course of study commences and to define the term “week” for the purposes of condition 8105.

Condition 8101 provides that the holder must not engage in work in Australia, and is commonly referred to as the “no work” condition.

 

Previously, all Subclass 576 visas granted to an applicant who satisfied the primary criteria were subject to condition 8101 unless the applicant met the requirements of subclause 576.211(4) or previously held a student visa subject to condition 8105. Subclause 576.211(4) generally relates to applicants who hold a student visa subject to condition 8101 and specifically seek a student visa which is not subject to condition 8101.

 

The effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Item [19] – Clause 576.614

 

This item substitutes clause 576.614 of Part 576 of Schedule 2 to the Principal Regulations with new clause 576.614. New clause 576.614 provides that if the applicant satisfies the secondary criteria, condition 8104 of Schedule 8 to the Principal Regulations is to apply.

 

The effect of new clause 576.614 is that all Subclass 576 (AusAID and Defence Sector) visas granted to a person who is a member of the family unit of an applicant who satisfies the primary criteria for a Subclass 576 visa will be subject to condition 8104 (clause 8104 of Schedule 8 to the Principal Regulations). Item [20] of this Schedule substitutes condition 8104 with new condition 8104. Condition 8104 generally provides that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. Further information about new condition 8104 is found below in the notes for item [20].

Previously, all Subclass 576 visas granted to an applicant who satisfied the secondary criteria were subject to condition 8101 unless the applicant:

 

·        previously held a student visa subject to condition 8104;

·        was the member of the family unit of a person who is the holder of a student visa as described in either former paragraphs 576.614(1)(b) or (c)and met the requirements of paragraph 576.312(4)(d).

In addition, former subclause 576.614(3) provided that condition 8101 or 8104 were not imposed generally when the “primary person” who is the holder of a relevant student visa who satisfied the primary criteria, and in relation to whom the applicant is a member of the family unit, has commenced a course of study for the award of a masters or doctorate degree. Following the amendment made by this item, all visas granted to applicants who satisfy the secondary criteria will be subject to condition 8104. However, amendments made by item [20] of this Schedule to condition 8104 result in no detriment to applicants who would have previously met the requirements in former subclause 576.614(3).

 

Generally, the effect of this amendment is to remove the requirement that holders of an initial student visa need to apply for a further student visa to obtain permission to work. In addition to saving initial student visa holders from having to apply for a new student visa, these amendments save the Department of Immigration and Citizenship from having to assess these additional visa applications increasing the efficiency of the student visa program.

 

Part 3 – Amendments of Schedule 8

 

Item [20] – Clause 8104

 

This item substitutes clause 8104 of Schedule 8 to the Principal Regulations with new clause 8104. Schedule 8 specifies various conditions to which a visa may be subject where specified in Schedule 2 to the Principal Regulations. Clause 8104 is also referred to in the Principal Regulations as condition 8104.

 

Condition 8104 is a work condition to which various subclasses of visa are subject. Generally, condition 8104 provides that a visa holder must not engage in work for more than 20 hours a week. Student visas held by persons who satisfy the secondary criteria for grant as members of the family unit of student visa holders who satisfy the primary criteria are subject to condition 8104. Following the amendments made by this Schedule, all such student visas will subject to condition 8104.

 

It has been found to be necessary to include additional restrictions to this condition when applied to student visas. New subclauses 8104(2) to (6) apply solely to student visas.

 

New subclause 8104(1) provides that the visa holder must not engage in work for more than 20 hours a week, subject to subclauses 8104 (2) to (6).

 

New subclause 8104(2) provides that if the visa holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, they must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

 

New subclause 8104(3) provides that visa holders who are able to engage in work in accordance with new subclause (2) must not work more than 20 hours a week while the visa holder is in Australia unless new subclause (4) or (5) applies.

 

New subclause 8104(4) provides that new subclause (3) does not apply where the visa for which the primary criteria were satisfied is a Subclass 573 (Higher Education Sector) or Subclass 574 (Postgraduate Research Sector) visa and the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

 

New subclause 8104(5) provides that new subclause (3) does not apply where the visa for which the primary criteria were satisfied is a Subclass 576 (AusAID or Defence Sector) visa and the course of study is a course for the award of a masters or doctorate degree.

Subclass 573, 574 or 576 visas granted to members of the family unit of a person who satisfy the primary criteria for the grant of a student visa are also initially subject to condition 8104. However, the effect of new subclauses (4) and (5) is to remove the 20 hour work limit where the person who satisfies the primary criteria has commenced his or her masters or doctoral studies. As many visa holders who are enrolled in a course for the award of a masters or doctorate degree do not commence their main course immediately upon arrival in Australia, it is the intention that members of the family unit will have unrestricted work rights only when the visa holder who satisfied the primary criteria commences their main course. For example, they may undertake an English language course before commencing their main course. Granting visas subject to condition 8104 for members of the family unit of a person who satisfies the primary criteria for the grant of a student visa provides an incentive for primary visa holders to commence their masters or doctorate degrees without undue delay.

 

Subclause 8104(6) provides that the term “week” in clause 8104 means the period of 7 days commencing on a Monday. This will remove any uncertainty as to the definition of a week, an issue which has arisen in a number of cases, notably in decisions of the Full Court of the Federal Court in MIMIA v Alam [2005] FCAFC 132 and MIAC v Islam [2007] FCAFC 66.

 

Item [21] – Before subclause 8105(1)

 

This item inserts new subclause 8105(1A) in clause 8105 of Schedule 8 to the Principal Regulations.

 

Subclause 8105(1A) provides that the holder of a visa must not engage in any work in Australia before the visa holder’s course of study commences. The effect of this new provision is to only permit a visa holder to engage in work once his or her course of study commences. This amendment will provide an incentive to student visa holders to not delay the commencement of their course of study.

 

Item [22] – After subclause 8105(2)

 

This item inserts new subclause 8105(3) in clause 8105 of Schedule 8 to the Principal Regulations. Clause 8105 is also referred to as condition 8105 in the Principal Regulations and is a condition specific to student visas granted to applicants who satisfy the primary criteria.

 

Subclause 8105(3) provides that the term “week” in clause 8105 means the period of 7 days commencing on a Monday. This will remove any uncertainty as to the definition of a week, an issue which has arisen in a number of cases, notably in decisions of the Full Court of the Federal Court in MIMIA v Alam [2005] FCAFC 132 and MIAC v Islam [2007] FCAFC 66.