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MIGRATION AMENDMENT REGULATIONS 2008 (NO. 3) (SLI NO 166 OF 2008)
EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 166
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulations 2008 (No. 3)
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 following provisions of the Act:
· Subsection 31(3) provides that the regulations may prescribe criteria for a visa of a specified class.
· Subsection 40(1) provides that the regulations may provide that a visa of a specified class may only be granted in certain circumstances
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy.
In particular, the Regulations amend the Principal Regulations to:
· make policy changes to Business Skills visa regulations that in general:
° facilitate members of the family unit applying separately for a visa of the same class;
° require secondary applicants claiming to be in a de facto relationship to have been in that relationship for 12 months;
° allow for the aggregation of minimum staffing level requirements;
° allow for time spent on a bridging visa to be counted as a qualifying visa in some circumstances;
° make changes to the residency criteria for some visas;
° clarify that only sponsored applicants are eligible for certain visa subclasses;
° provide that the minimum asset requirement must be met using assets that have been lawfully acquired;
· provide that decisions to refuse to approve a person as a sponsor for some temporary residence visas are to be reviewable by the Migration Review Tribunal. The amendments also provide that decisions to refuse or approve a person as a sponsor for some temporary residence visas are separate from the decision to grant or refuse the visa sought in the related visa application. In addition, Schedule 3 provides that the Minister may consider a person’s capacity to meet the sponsorship undertakings as a criterion for the approval of that person as a sponsor; and
· remove the Assurance of Support requirement for grant of some permanent visas.
Details of the Regulations are set out in the Attachment.
The Regulations commence on 9 August 2008.
The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.
Each State and Territory government was consulted in relation to the amendments made by Schedules 1 and 2.
No consultations were conducted in relation to Schedule 3 as the amendments were considered not to have relevant implications for any other external agencies or bodies.
The amendments made by Schedule 4 were made in consultation with the Department of Families, Housing, Community Services and Indigenous Affairs.
ATTACHMENT
Details of the Migration Amendment Regulations 2008 (No. 3)
Regulation 1 – Name of Regulations
This Regulation provides that the title of the Regulations is the Migration Amendment Regulations 2008 (No. 3).
Regulation 2 – Commencement
This Regulation provides for the Regulations to commence on 9 August 2008.
Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1
This Regulation provides that Schedule 1 to the Regulations amends the Migration Regulations 1994 (the Principal Regulations), and that these amendments apply in relation to an application for a visa made on or after 9 August 2008.
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
This Regulation provides that Schedule 2 to the Regulations amends the Principal Regulations, and that these amendments apply in relation to:
· an application for a visa made on or after 9 August 2008; and
· an application made, but not finally determined, before 9 August 2008.
‘Finally determined’ is defined in subsection 5(9) of the Migration Act 1958 (the Act) to mean where a decision or an application is not or no longer subject to merits review by the Migration Review Tribunal or Refugee Review Tribunal or where there was a period allowed for the decision to be reviewed but it has passed.
Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3
This Regulation provides that Schedule 3 to the Regulations amends the Principal Regulations, and that these amendments apply in relation to an application for a visa made on or after 9 August 2008.
Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4
This Regulation provides that Schedule 4 to the Regulations amends the Principal Regulations, and that these amendments apply in relation to:
· an application for a visa made on or after 9 August 2008; and
· an application made, but not finally determined before 9 August 2008.
‘Finally determined’ is defined in subsection 5(9) of the Act to mean where a decision or an application is not or no longer subject to merits review by the Migration Review Tribunal or Refugee Review Tribunal, or where there was a period allowed for the decision to be reviewed but it has passed.
Schedule 1 – Amendments relating to business skills visas
Item [1] – Paragraph 1.15A(2)(d)
This item inserts “a Business Skills (Provisional) (Class UR) visa” after “a permanent visa,” in paragraph 1.15A(2)(d) in Division 1.2 of Part 1 of the Principal Regulations.
Paragraph 1.15A(1)(b) provides that a person is the spouse of another person if the
2 persons are in a de facto relationship, as described in subregulation 1.15A(2). Subregulation 1.15A(2) sets out the circumstances in which two persons are considered to be in a de facto relationship. Relevantly, paragraph 1.15A(2)(d) provides that applicants for certain visas will only be considered to be in a de facto relationship if the Minister is satisfied that for the period of 12 months immediately preceding the date of the application:
The effect of this amendment is to add Business Skills (Provisional) (Class UR) visas to the visas which require persons who seek to satisfy the secondary criteria on the basis of a de facto relationship, to satisfy the Minister that they have been in that relationship for at least 12 months immediately preceding the application.
Item [2] – Schedule 2, clause 132.223
This item substitutes clause 132.223 in Schedule 2 to the Principal Regulations with new clause 132.223.
Clause 132.223 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a Subclass 132 – Business Talent visa. New clause 132.223 provides that:
New clause 132.223 reproduces, with some modification, the current criteria in
paragraph 1104AA(3)(d) of Schedule 1 to the Principal Regulations of which Subclass 132 is the only visa subclass. Item 1104AA of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills – Established Business (Residence) (Class EA) visa.
New clause 132.223 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 132 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored by the time of decision, in order to satisfy the criteria for grant of a Subclass 132 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Item [3] – Schedule 2, clause 160.311
This item substitutes clause 160.311 in Schedule 2 to the Principal Regulations with new clause 160.311.
Clause 160.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 160 – Business Owner (Provisional) visa. New
clause 160.311 provides that the applicant must be a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the family head satisfies the primary criteria at time of application. Paragraph (b) provides that the family head holds a Subclass 160 visa.
New paragraph 160.311(a) retains what is in current clause 160.311. New paragraph 160.311(b) allows members of the family unit of a person who hold a Subclass 160 visa to subsequently apply for a Subclass 160 visa without the family head again having to be assessed against the criteria for the visa. New clause 160.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 160 visa. For example, clause 160.215 provides that a person seeking to satisfy the primary criteria for a Subclass 160 visa must be less than 45 years old at time of application. Under the current criteria, a member of the family unit who applies as a secondary applicant for a Subclass 160 visa after visa grant to the primary applicant, would not be able to satisfy current clause 160.311 if the family head has turned 45 years old after time of application. The member of the family unit would be able to satisfy new clause 160.311.
Item [4] – Schedule 2, clause 161.311
This item substitutes clause 161.311 in Schedule 2 to the Principal Regulations with new clause 161.311.
Clause 161.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 161 – Senior Executive (Provisional) visa. New
clause 161.311 provides that the applicant must be a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the family head satisfies the primary criteria at time of application. Paragraph (b) provides that the family head holds a Subclass 161 visa.
New paragraph 161.311(a) retains what is in current clause 161.311. New
paragraph 161.311(b) allows members of the family unit of a person who holds a
Subclass 161 visa to subsequently apply for a Subclass 161 visa without the family head again having to be assessed against the criteria for the visa. New clause 161.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 161 visa. For example, clause 161.214 provides that a person seeking to satisfy the primary criteria for a Subclass 161 visa must be less than 45 years old at time of application. Under the current criteria, a member of the family unit who applies for a Subclass 161 visa after visa grant to the primary applicant would not be able to satisfy current clause 161.311 if the family head has turned 45 years old since time of application. The member of the family unit would be able to satisfy new
clause 161.311.
Item [5] – Schedule 2, clause 162.311
This item substitutes clause 162.311 in Schedule 2 to the Principal Regulations with new clause 162.311.
Clause 162.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 162 – Investor (Provisional) visa. New clause 162.311 provides that the applicant must, at the time of application, be a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the person satisfies the primary criteria at time of application. Paragraph (b) provides that the person holds a Subclass 162 visa.
New paragraph 162.311(a) retains what is in current clause 162.311. New paragraph 162.311(b) allows members of the family unit of a person who holds a Subclass 162 visa to subsequently apply for a Subclass 162 visa without the family head again having to be assessed against the time of application primary criteria for the visa. New clause 162.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 162 visa. For example, clause 162.214 provides that a person seeking to satisfy the primary criteria for a Subclass 162 visa must be less than 45 years old at time of application. Under the current criteria, a member of the family unit who applies for a Subclass 162 visa after visa grant to the primary applicant would not be able to satisfy current clause 162.311 if the family head has turned 45 years old since time of application. The member of the family unit would be able to satisfy new clause 162.311.
Item [6] – Schedule 2, clause 163.222
This item substitutes clause 163.222 in Schedule 2 to the Principal Regulations with new clause 163.222.
Clause 163.222 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a subclass 163 – State/Territory Sponsored Business Owner (Provisional) visa. New clause 163.222 provides that:
New clause 163.222 reproduces, with some modification, the current criteria in
paragraph 1202A(3)(d) of Schedule 1 to the Principal Regulations of which Subclass 163 is a visa subclass, among others. Item 1202AA of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills (Provisional) (Class UR) visa.
New clause 163.222 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 163 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored as required by the time of decision, in order to satisfy the criteria for grant of a Subclass 163 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Item [7] – Schedule 2, clause 163.311
This item substitutes clause 163.311 in Schedule 2 to the Principal Regulations with new clause 163.311.
Clause 163.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 163 – State/Territory Sponsored Business Owner (Provisional) visa. New clause 163.311 provides that the applicant must, at the time of application be a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the family head at the time of application satisfies the primary criteria. Paragraph (b) provides that the family head holds a Subclass 163 visa.
New paragraph 163.311(a) retains what is in current clause 163.311. New
paragraph 163.311(b) allows members of the family unit of a person who holds a
Subclass 163 visa to subsequently apply for a Subclass 163 visa without the family head again having to be assessed against the at the time application primary criteria for the visa. New clause 163.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 163 visa. For example, paragraph 163.214(a) provides that a person seeking to satisfy the primary criteria for a Subclass 163 visa must be less than 55 years old at time of application unless paragraph (b) applies. Under the current criteria, a member of the family unit who applies for a Subclass 163 visa after visa grant to the primary applicant, would not be able to satisfy current clause 163.311 if the family head has turned 55 years old since time of application. The member of the family unit would be able to satisfy new clause 163.311.
Item [8] – Schedule 2, clause 164.222
This item substitutes clause 164.222 in Schedule 2 to the Principal Regulations with new clause 164.222.
Clause 164.222 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a Subclass 164 – State/Territory Sponsored Senior Executive (Provisional) visa. New clause 164.222 provides that:
New clause 164.222 reproduces, with some modification, the current criteria in paragraph 1202A(3)(d) of Schedule 1 to the Principal Regulations of which Subclass 164 is a visa subclass, among others. Item 1202A of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills (Provisional) (Class UR) visa.
New clause 164.222 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 164 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored as required by the time of decision, in order to satisfy the criteria for grant of a Subclass 164 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Item [9] - Schedule 2, clause 164.311
This item substitutes clause 164.311 in Schedule 2 to the Principal Regulations with new clause 164.311.
Clause 164.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 164 – State/Territory Sponsored Senior Executive (Provisional) visa. New clause 164.311 provides that the applicant must be, at the time of application a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the family head at the time of application satisfies the primary criteria. Paragraph (b) provides that the family head holds a Subclass 164 visa.
New paragraph 164.311(a) retains what is in current clause 164.311. New paragraph 164.311(b) allows members of the family unit of a person who holds a Subclass 164 visa to subsequently apply for a Subclass 164 visa without the family head again having to be assessed against the time of application primary criteria for the visa. New clause 164.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 164 visa. For example, paragraph 164.214(a) provides that a person seeking to satisfy the primary criteria for a Subclass 164 visa must be less than 55 years old at time of application unless paragraph (b) applies. Under the current criteria, a member of the family unit who applies for a Subclass 164 visa after visa grant to the primary applicant would not be able to satisfy current clause 164.311 if the family head has turned 55 years old since the time of application. The member of the family unit would be able to satisfy new clause 164.311.
Item [10] – Schedule 2, clause 165.223
This item substitutes clause 165.223 in Schedule 2 to the Principal Regulations with new clause 165.223.
Clause 165.223 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a Subclass 165 – State/Territory Sponsored Investor (Provisional) visa. New clause 165.223 provides that:
New clause 165.223 reproduces, with some modification, the current criteria in
paragraph 1202A(3)(d) of Schedule 1 to the Principal Regulations of which Subclass 165 is a visa subclass, among others. Item 1202A of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills (Provisional) (Class UR) visa.
New clause 165.223 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 165 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored as required by the time of decision, in order to satisfy the criteria for grant of a Subclass 165 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Item [11] - Schedule 2, clause 165.311
This item substitutes clause 165.311 in Schedule 2 to the Principal Regulations with new clause 165.311.
Clause 165.311 is the only time of application criterion for persons seeking to satisfy the secondary criteria for a Subclass 165 – State/Territory Sponsored Investor (Provisional) visa. New clause 165.311 provides that the applicant must at the time of application be a member of the family unit of a person (‘the family head’) who satisfies either paragraph (a) or (b). Paragraph (a) provides that the family head at the time of application satisfies the primary criteria. Paragraph (b) provides that the family head holds a Subclass 165 visa.
New paragraph 165.311(a) retains what is in current clause 165.311. New
paragraph 165.311(b) allows members of the family unit of a person who holds a subclass 165 visa to subsequently apply for a Subclass 165 visa without the family head again having to be assessed against the time of application primary criteria for the visa. New clause 165.311 recognises that members of the family unit should be able to apply for the same visa that the family head currently holds, regardless of changes in the family head’s circumstances that may result in them no longer satisfying the criteria for a Subclass 165 visa. For example, paragraph 165.214(a) provides that a person seeking to satisfy the primary criteria for a Subclass 165 visa must be less than 55 years old at time of application unless paragraph (b) applies. Under the current criteria, a member of the family unit who applies for a
Subclass 165 visa after visa grant to the primary applicant would not be able to satisfy current clause 165.311 if the family head has turned 55 years old since time of application. The member of the family unit would be able to satisfy new clause 165.311.
Item [12] – Schedule 2, clauses 845.214 and 845.215
This item substitutes clauses 845.214 and 845.215 in Schedule 2 to the Principal Regulations with new clauses 845.214 and 845.215.
Clauses 845.214 and 845.215 are criteria that must be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 845 – Established Business in Australia visa. New paragraphs 845.214(a) and (b) retain the requirement that applicants must have assets in Australia which have a net value of at least $250,000 and which had at least that value throughout the period of 12 months immediately preceding the making of the application. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. Paragraph 845.214(c) introduces an additional requirement that these assets must have been lawfully acquired by the applicant or the applicant and his or her spouse together. New paragraph (c) clarifies that applicants cannot satisfy clause 845.214 by using assets which have been unlawfully acquired.
New paragraphs 845.215(a) and (b) retain the current requirement that the assets owned by the applicant in the main business or main businesses in Australia have a net value of at least $100,000 and had at least that value throughout the period of 12 months immediately preceding the making of the application. This requirement may be satisfied by the primary applicant individually or by the primary applicant and his or her spouse together. New paragraph 845.215(c) introduces an additional requirement that these assets must have been lawfully acquired by the primary applicant or the primary applicant and his or her spouse together. New paragraph (c) clarifies that applicants cannot satisfy clause 845.215 by using assets which have been unlawfully acquired.
Item [13] – Schedule 2, subparagraphs 845.222(2)(c)(i) and (ii)
This item substitutes subparagraphs 845.222(2)(c)(i) and (ii) in Schedule 2 to the Principal Regulations with new subparagraphs 845.222(2)(c)(i) and (ii).
Clause 845.222 sets out criteria that must be satisfied at the time of decision by applicants seeking to satisfy the primary criteria for a Subclass 845 – Established Business in Australia visa. Paragraph 845.222(2)(c) provides what assets are to be taken into account when determining the score of an applicant under Part 4 of Schedule 7 to the Principal Regulations. Schedule 7 sets out a business skills points test. Relevantly, subclause 845.222(1) provides that a criterion to be satisfied at time of decision for applicants seeking to satisfy the primary criteria for a Subclass 845 visa is that the applicant’s score on the business skills points test is not less than the number of points specified by Gazette Notice. Part 4 of Schedule 7 provides the number of points that an applicant will receive where the net assets of an applicant or of the applicant and the applicant’s spouse together are at a specified value.
New subparagraph 845.222(2)(c)(i) introduces a requirement that only assets in Australia that have been lawfully acquired by the applicant or the applicant and his or her spouse together are to be taken into account for the purpose of Part 4 of Schedule 7. This clarifies that applicants cannot satisfy paragraph 845.222(2)(c) by using assets which have been unlawfully acquired. New subparagraph 845.222(2)(c)(ii) retains the current requirement that only assets available for transfer and capable of being transferred to Australia within 2 years of the grant of a business skills visa to the applicant are to be taken into account for the purpose of Part 4 of Schedule 7.
Item [14] – Schedule 2, clauses 846.213 and 846.214
This item substitutes clauses 846.213 and 846.214 in Schedule 2 to the Principal Regulations with new clauses 846.213 and 846.214.
Clauses 846.213 and 846.214 are criteria to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 846 – State/Territory Sponsored Regional Established Business in Australia visa. New paragraphs 846.213(a) and (b) retain the current requirement that applicants must have assets in Australia which have a net value of at least $200,000 and which had at least that value throughout the period of 2 years immediately preceding the making of the application. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. Paragraph 846.213(c) introduces an additional requirement that these assets have been lawfully acquired by the applicant or the applicant and his or her spouse together. New paragraph (c) clarifies that applicants cannot satisfy clause 846.213 by using assets which have been unlawfully acquired.
New paragraphs 846.214(a) and (b) retain the current requirement that the assets owned by the applicant in one or more established main businesses in one or more designated areas must have a net value of at least $75,000, and must have had at least that value throughout the period of 2 years immediately preceding the making of the application. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. Paragraph 846.214(c) introduces an additional requirement that these assets must have been lawfully acquired by the applicant or the applicant and his or her spouse together. New paragraph (c) clarifies that applicants cannot satisfy clause 846.214 by using assets which have been unlawfully acquired.
Item [15] – Schedule 2, subparagraphs 846.222(2)(c)(i) and (ii)
This item substitutes subparagraphs 846.222(2)(c)(i) and (ii) in Schedule 2 to the Principal Regulations with new subparagraphs 846.222(2)(c)(i) and (ii).
Clause 846.222 sets out criteria that must be satisfied at the time of decision by applicants seeking to satisfy the primary criteria for a Subclass 846 – State/Territory Sponsored Regional Established Business in Australia visa. Paragraph 846.222(2)(c) sets out what assets are to be taken into account when determining the score of an applicant under Part 4 of Schedule 7 to the Principal Regulations. In summary, Schedule 7 sets out a business skills points test and the effect of subclauses 846.222(1), (1A) and (1B) is that a criterion to be satisfied at the time of decision for applicants seeking to satisfy the primary criteria for a Subclass 846 visa, is that the applicant’s score on the business skills points test is not less than the number of points specified by Gazette Notice, or if the applicant’s score on the business skills points test is less than the number of points that is specified in the Gazette Notice, a regional authority satisfies the Minister that there are exceptional circumstances that justify the grant of the visa. Relevantly, Part 4 of Schedule 7 provides the number of points that an applicant will receive where the net assets of an applicant or of the applicant and the applicant’s spouse together are at a specified value.
New subparagraph 846.222(2)(c)(i) introduces a requirement that only assets in Australia that have been lawfully acquired by the applicant or the applicant and his or her spouse together are to be taken into account for the purpose of Part 4 of Schedule 7. New subparagraph 846.222(2)(c)(ii) retains the current requirement that only assets lawfully acquired that are available for transfer and capable of being transferred to Australia within 2 years of the grant of a business skills visa to the applicant are to be taken into account for the purpose of Part 4 of Schedule 7. This amendment clarifies that applicants cannot satisfy paragraph 846.222(2)(c) by using assets which have been unlawfully acquired.
Item [16] – Schedule 2, clause 890.212
This item substitutes clause 890.212 in Schedule 2 to the Principal Regulations with new clause 890.212.
Clause 890.212 is a criterion to be satisfied at time of application for applicants seeking to satisfy the primary criteria for a Subclass 890 – Business Owner visa. New paragraphs 890.212(a) and (b) retain the requirement that applicants must have assets in Australia which have a net value of at least $100,000 and which had at least that value throughout the period of 12 months immediately preceding the making of the application. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. Paragraph 890.212(c) introduces an additional requirement that these assets must have been lawfully acquired by the applicant or the applicant and his or her spouse together. New paragraph (c) clarifies that applicants cannot satisfy clause 890.212 by using assets which have been unlawfully acquired.
Item [17] – Schedule 2, paragraphs 892.212(b) and (c)
This item substitutes paragraphs 892.212(b) and (c) in Schedule 2 to the Principal Regulations with new paragraphs 892.212(b) and (c).
Clause 892.212 is a criterion to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 892 – State/Territory Sponsored Business Owner visa. Clause 892.212 requires that an applicant must meet at least two of the requirements in paragraphs (a), (b) and (c), unless the appropriate regional authority has determined that there are exceptional circumstances.
New subparagraphs 892.212(b)(i) and (ii) retain the requirement that applicants must have assets in Australia which have a net value of at least $250,000 and which had at least that value throughout the period of 12 months immediately preceding the making of the application. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. New subparagraph 892.212(b)(iii) introduces an additional requirement that these assets must have been lawfully acquired by the applicant or the applicant and his or her spouse together. This clarifies that applicants cannot satisfy paragraph 892.212(b) by using assets which have been unlawfully acquired.
New subparagraphs 892.212(c)(i) and (ii) retain the requirement that applicants must have owned throughout the 12 months immediately preceding the making of the application, assets in the main business or main businesses in Australia which have a net value of at least $75,000. This requirement may be satisfied by the applicant individually or by the applicant and his or her spouse together. Subparagraph 892.212(c)(iii) introduces an additional requirement that these assets must have been lawfully acquired by the applicant or the applicant and his or her spouse together. New subparagraph 892.212(c)(iii) clarifies that applicants cannot satisfy paragraph 892.212(c) by using assets which have been unlawfully acquired.
Item [18] – Schedule 2, clause 892.222
This item substitutes clause 892.222 in Schedule 2 to the Principal Regulations with new clause 892.222.
Clause 892.222 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a Subclass 892 – State/Territory Sponsored Business Owner visa. New clause 892.222 provides that:
New clause 892.222 reproduces, with some modification, the current criteria in
paragraph 1104B(3)(i) of Schedule 1 to the Principal Regulations of which Subclass 892 is a visa subclass, among others. Item 1104B of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills (Residence) (Class DF) visa.
New clause 892.222 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 892 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored as required by the time of decision, in order to satisfy the criteria for grant of a Subclass 892 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Item [19] – Schedule 2, clause 893.222
This item substitutes clause 893.222 in Schedule 2 to the Principal Regulations with new clause 893.222.
Clause 893.222 is a criterion to be satisfied at time of decision for persons seeking to satisfy the primary criteria for a Subclass 893 – State/Territory Sponsored Investor visa. New
Clause 893.222 provides that:
New clause 893.222 reproduces, with some modification, the current criteria in
paragraph 1104B(3)(i) of Schedule 1 to the Principal Regulations of which Subclass 893 is a visa subclass, among others. Item 1104B of Schedule 1 to the Principal Regulations sets out the requirements for making a valid application for a Business Skills (Residence) (Class DF) visa.
New clause 893.222 clarifies that applicants seeking to satisfy the primary criteria for a Subclass 893 visa must in fact be sponsored at the time of decision. In certain circumstances, it may be possible to argue that an application was valid even though no sponsorship was lodged with the application. This amendment ensures that, even in those circumstances, an applicant will still have to be sponsored as required by the time of decision, in order to satisfy the criteria for grant of a Subclass 893 visa. The amendment also moves away from the concept of a sponsor not having withdrawn their sponsorship to make it clear that applicants may change their sponsor between the time of application and time of decision.
Schedule 2 – Further amendments relating to business skills visas
Item [1] – Schedule 2, clause 845.212
This item substitutes clause 845.212 in Schedule 2 to the Principal Regulations with new clause 845.212.
Clause 845.212 is a criterion to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 845 – Established Business in Australia visa. New clause 845.212 requires that in the 12 months immediately preceding the making of the application, the applicant must have been in Australia for 272 days as the holder of any or all of the following:
Two changes to clause 845.212 are made by this amendment. The first is to change the time spent in Australia requirement from 9 months to 272 days. There is nothing in the Act or the Principal Regulations that indicates how the period of a month should be calculated. Under section 22 of the Acts Interpretation Act 1901 “month” is defined to mean a calendar month. A calendar month is defined to mean a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month. Accordingly, an applicant would need to be in Australia for nine whole calendar months before they could satisfy current clause 845.212. If an applicant departed Australia at any time during one of those 9 months, they would not satisfy clause 845.212. The change to 272 days would allow applicants to travel overseas for short periods without this affecting their ability to satisfy clause 845.212. No applicants will be disadvantaged by this change as 272 days equates to nine months when each of the months with less than 31 days are counted.
The second change is to allow time spent on a Bridging A visa or Bridging B visa following a valid application for a Temporary Business Entry (Class UC) visa to count towards the time spent in Australia requirement. The time spent on these bridging visas will only count if a Subclass 457 – Business (Long Stay) visa is subsequently granted on the basis of the applicant or their spouse or former spouse being an independent executive. This amendment recognises that some applicants hold Bridging A or Bridging B visas for an extended period while their Subclass 457 visa is processed.
Item [2] – Schedule 2, clause 890.214
This item substitutes clause 890.214 in Schedule 2 to the Principal Regulations with new clause 890.214.
Clause 890.214 is a criterion to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 890 – Business Owner visa. Clause 890.214 sets out minimum staffing level requirements for the applicant’s main business or main businesses in Australia. New clause 890.214 provides that in the 12 months ending immediately before the application is made, the applicant or the applicant and his or her spouse together, provided a total number of employment hours in the main business or main businesses in Australia that was at least equivalent to the number of hours that would have been worked by two full-time employees. To satisfy this criterion, each of the employment hours must have been worked by an employee or employees who, when they were working those employment hours:
The effect of current clause 890.214 is that the applicant must have employed one full-time employee at all times throughout the 12 month period. Applicants who own businesses which for seasonal reasons have fluctuating labour requirements may not be able to satisfy this criterion. By requiring applicants to provide employment hours that is at least equivalent to the hours that would have been worked by two full-time employees, new clause 890.214 will ensure that applicants with fluctuating labour requirements are not disadvantaged in terms of their ability to satisfy this criterion. For example, an applicant who employs four full-time staff for six months of the year and then no full-time staff for the remaining six months would be able to satisfy this new criterion but could not satisfy the current criterion.
Item [3] – Schedule 2, paragraph 892.212(a)
This item substitutes paragraph 892.212(a) of Schedule 2 to the Principal Regulations with new paragraph 892.212(a).
Clause 892.212 is a criterion to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 892 – State/Territory Sponsored Business Owner visa. Clause 892.212 requires that an applicant must meet at least two of the requirements in paragraphs (a), (b) and (c), unless the appropriate regional authority has determined that there are exceptional circumstances.
Paragraph 892.212(a) sets out minimum staffing level requirements for the applicant’s main business or main businesses in Australia. New paragraph 892.212(a) provides that in the 12 months ending immediately before the application is made, the applicant or the applicant and his or her spouse together, provided a total number of employment hours in the main business or main businesses in Australia that was at least equivalent to the number of hours that would have been worked by one full-time employee. To satisfy this criterion, each of the employment hours must have been worked by an employee or employees who, when they were performing those employment hours:
The effect of current paragraph 892.212(a) is that the applicant must have employed
one full-time employee at all times throughout the 12 month period. Applicants who own businesses which for seasonal reasons have fluctuating labour requirements may not be able to satisfy this criterion. By requiring applicants to provide employment hours that is at least equivalent to the hours that would have been worked by one full-time employee, new paragraph 892.212(a) will ensure that applicants with fluctuating labour requirements are not disadvantaged in terms of their ability to satisfy this criterion. For example, an applicant who employs two full-time staff for six months of the year but no staff for the remaining six months would be able to satisfy this new criterion but could not satisfy the current criterion.
Item [4] – Schedule 2, clause 892.215
This item substitutes clause 892.215 in Schedule 2 to the Principal Regulations with new clause 892.215.
Clause 892.215 is a criterion to be satisfied at time of application for persons seeking to satisfy the primary criteria for a Subclass 892 – State/Territory Sponsored Business Owner visa. New clause 892.215 provides that if the applicant is not the holder of a Skilled – Independent Regional (Provisional) (Class UX) visa they must have been in Australia for at least one year in the two years ending immediately before the application is made as the holder of any or all of the following:
This amendment retains what is currently in clause 892.215 but with the additional element of allowing time spent on a Bridging A visa or Bridging B visa which were granted following a valid application for a Temporary Business Entry (Class UC) visa to count towards the time spent in Australia requirement. The time spent on these bridging visas will only count if a Subclass 457 – Business (Long Stay) visa is subsequently granted on the basis of being an independent executive. This amendment recognises that some applicants hold Bridging A or Bridging B visas for an extended period while their Subclass 457 visa is processed.
Item [5] – Schedule 7, Part 1
This item substitutes Part 1 of Schedule 7 to the Principal Regulations with new Part 1.
Schedule 7 to the Principal Regulations sets out a business skills points test. Part 1 of Schedule 7 provides the number of points given for business attributes of an applicant.
Division 1.4 applies to Subclass 845 – Established Business in Australia visas. Relevantly, subclause 845.222(1) of Schedule 2 to the Principal Regulations provides that a time of decision criterion for applicants seeking to satisfy the primary criteria for a Subclass 845 visa is that their score on the business skills points test is not less than the number of points that is specified by Gazette Notice. Paragraph 845.222(2)(a) provides that for the purpose of subclause 845.222(1), an applicant’s score on the business skills points test is the sum of the applicant’s scores under Division 1.4 of Schedule 7 and Parts 2, 3 and 4 of that Schedule.
New item 7170 of Division 1.4 provides that an applicant will receive 60 points towards the business skills points test if they meet both paragraph (a) and (b). Paragraph (a) requires that in the 12 months immediately preceding the making of the application, the total number of hours of employment provided by the applicant in the main business or main businesses must be at least equivalent to the total number of hours that would have been worked by three full-time employees. Each of these employment hours must have been worked by an employee or employees who, when they were working those hours:
The effect of current item 7170 is that to receive 60 points for this item, an applicant for a Subclass 845 visa must have employed three full-time employees at all times throughout the 12 month period. Applicants who own businesses which for seasonal reasons have fluctuating labour requirements may not be able to satisfy this item. By requiring applicants to provide employment hours that is at least equivalent to the hours that would have been worked by three full-time employees over the preceding 12 months, new item 7170 will ensure that applicants with fluctuating labour requirements are not disadvantaged in terms of their ability to satisfy this item. For example, an applicant who employs six full-time employees for six months of the year and then no full-time employee for the remaining six months would receive 60 points under new item 7170 but would not receive any points under current item 7170.
New paragraph (b) provides that in the 12 months immediately preceding the making of the application, the main business or main businesses of the applicant must have had a turnover of not less than $200,000 or exported goods or services of a value of not less than $100,000. No substantive change to current paragraph (b) is made by this amendment.
Division 1.5 of Part 1 of Schedule 7 applies to Subclass 846 – State/Territory Sponsored Regional Established Business in Australia visas. Relevantly, the effect of subclauses 846.222(1), (1A) and (1B) is that a time of decision criterion for persons seeking to satisfy the primary criteria for a Subclass 846 visa is that the applicant’s score on the business skills points test is not less than the number of points specified by Gazette Notice, or if the applicant’s score on the business skills points test is less than the number of points that is specified in the Gazette Notice, a regional authority satisfies the Minister that there are exceptional circumstances that justify the grant of the visa. Paragraph 846.222(2)(a) provides that for the purpose of subclauses 846.222(1A) and (1B), an applicant’s score on the business skills points test is the sum of the applicant’s scores under Division 1.5 of Schedule 7 and Parts 2, 3, 4 and 5 of that Schedule.
New item 7180 of Division 1.5 provides that an applicant will receive 60 points on the business skills points test if in the two years immediately preceding the making of the application, the total number of hours of employment provided by the applicant in the established main business or main businesses (of the applicant or the applicant and his/her spouse) in a designated area or areas, was at least equivalent to the total number of hours that would have been worked by three full-time employees. Each of these employment hours must have been worked by an employee or employees who, when they were working those hours:
The effect of current item 7180 is that to receive 60 points for this item, an applicant for a Subclass 846 visa must have employed three full-time employees at all times throughout the two year period. Applicants who own businesses which for seasonal reasons have fluctuating labour requirements may not be able to satisfy this item. By requiring applicants to provide employment hours that is at least equivalent to the hours that would have been worked by three full-time employees over the preceding two years, new item 7180 will ensure that applicants with fluctuating labour requirements are not disadvantaged in terms of their ability to satisfy this item. For example, an applicant who employs six full-time employees for the first year and then no full-time employees for the other year would be able to satisfy new item 7180 but could not satisfy current item 7180.
New item 7181 of Division 1.5 provides that an applicant will receive 40 points if in the two years immediately preceding the making of the application, the total number of hours of employment provided by the applicant in the established main business or main businesses (of the applicant or the applicant and his/her spouse) in a designated area was at least equivalent to the total number of hours that would have been worked by two full-time employees. Each of these employment hours must have been worked by an employee or employees who, when they were working those hours:
· were not the applicant or a member of the family unit of the applicant; and
· were Australian citizens, Australian permanent residents or New Zealand passport holders.
The effect of current item 7181 is that to receive 40 points for this item, an applicant for a Subclass 846 visa must have employed two full-time employees at all times throughout the two year period. Applicants who own businesses which for seasonal reasons have fluctuating labour requirements may not be able to satisfy this item. By requiring applicants to provide employment hours that is at least equivalent to the hours that would have been worked by two full-time employees over the preceding two years, new item 7181 will ensure that applicants with fluctuating labour requirements are not disadvantaged in terms of their ability to satisfy this item. For example, an applicant who employs four full-time employees for the first year and then no full-time employees for the other year would be able to satisfy new item 7181 but could not satisfy current item 7181.
Schedule 3 – Amendments relating to sponsorship
Item [1] – Paragraph 1.20(2)(b)
This item omits the words “the sponsor accepts responsibility for” in paragraph 1.20(2)(b) in Division 1.4 of Part 1 of the Principal Regulations, and replaces them with the words “the sponsor undertakes to accept responsibility for”.
Regulation 1.20 prescribes those obligations placed on sponsors of applicants for specified classes of visa. More specifically, paragraph 1.20(2)(b) provides that, where the visa applicant has applied for a temporary visa (other than a Resolution of Status (Temporary) (Class UH), Partner (Provisional) (Class UF), Partner (Temporary) (Class UK), Extended Eligibility (Temporary) (Class TK) visa) or Sponsored Training (Temporary) (Class UV) visa), the sponsor must accept responsibility for:
· all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant's stay in Australia; and
· compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and
· unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia;
This amendment requires that the sponsor undertakes to accept responsibility for these matters.
The purpose of this amendment is to reflect the requirement in practice that the sponsor sign a written undertaking accepting responsibility for these matters.
Item [2] – After regulation 1.20
This item inserts new regulation 1.20AA in Division 1.4 of Part 1 of the Principal Regulations after regulation 1.20.
New subregulation 1.20AA(1) provides that new regulation 1.20AA applies only in relation to applications for the following subclasses of visa:
The purpose of new subregulation 1.20AA(1) is to limit the application of regulation 1.20AA to these specified types of visas.
New subregulation 1.20AA(2) provides that the Minister may approve or refuse to approve a person or an organisation (including a school, foreign government agency or an unincorporated association) as a sponsor of: an applicant for the visa; or multiple applicants for the same subclass of visa.
The purpose of new subregulation 1.20AA(2) is to provide for an express authority in Part 1 of the Regulations for the Minister to approve or refuse to approve a person or organisation as a sponsor of an applicant for a visa specified in new subregulation 1.20AA(1). The inclusion of paragraph 1.20AA(2)(b) makes it clear that this power can be exercised in relation to multiple applicants for the same subclass of visa. New subregulation 1.20AA(2) also makes it clear in the legislation that the decision to approve or refuse to approve a person or organisation as a sponsor in relation to a visa of a kind listed in subregulation 1.20AA(1), is a separately delegable decision from that to approve or refuse to approve the related visa application.
New subregulation 1.20AA(3) provides that, in considering an application for approval of a proposed sponsor, the Minister:
· must have regard to the capacity of the proposed sponsor to comply with the undertakings mentioned in paragraph 1.20(2)(b); and
· may have regard to any other matter that the Minister considers relevant.
The purpose of this amendment is to require the Minister to consider a person or organisation’s capacity to comply with the undertakings to accept responsibility for the items specified paragraph 1.20(2)(b), as a criterion for approval as a sponsor for one of the visas specified in new subregulation 1.20AA(1). The Minister may also have regard to any other matter that the Minister considers relevant.
New subregulation 1.20AA(4) provides that nothing in new regulation 1.20AA limits or affects in any way the matters to which the Minister may have regard in considering an application for the approval of a proposed sponsor in relation to any other kind of visa application to which regulation 1.20 applies.
The purpose of new subregulation 1.20AA(4) is to clarify the policy intention in the legislation that the insertion of new subregulation 1.20AA in the Principal Regulations is not to limit or affect in any way the considerations for approving or refusing to approve a person or organisation as a sponsor for an applicant for a visa applicant to which new subregulation 1.20AA does not apply.
Item [3] – Sub-subparagraph 4.02(4)(l)(ii)(E)
This item is a technical amendment consequential to the amendment made by Item [4] of this Schedule.
Item [4] – After paragraph 4.02(4)(l)
This item inserts new paragraph 4.02(4)(m) in Part 4 of the Principal Regulations.
Section 338 in Division 2 of Part 5 of the Act provides for certain decisions under migration legislation to be eligible for merits review by the Migration Review Tribunal (‘MRT’). More specifically, subsection 338(9) provides that a decision that is prescribed for the purposes of that subsection is an MRT-reviewable decision.
Subregulation 4.02(4) prescribes those decisions made under the Principal Regulations that are MRT-reviewable decisions for the purposes of subsection 338(9). This item inserts new paragraph 4.02(4)(m) to provide that a decision under subregulation 1.20AA(2) to refuse to approve a person or an organisation as a sponsor of a temporary visa applicant is a prescribed decision for the purposes of subsection 338(9) of the Act.
The purpose of this amendment is to provide that a decision to refuse to approve a person or organisation as a sponsor in relation to an application for a subclass of visa to which new subregulation 1.20AA applies, is merits reviewable by the Migration Review Tribunal. That is, the effect of this amendment is to attach a right of review to the decision to approve or refuse to approve a sponsor that is independent of the merits review right attached to the relevant decision to approve or refuse to approve the related visa application.
Item [5] – Schedule 2, paragraph 415.224(a)
This item substitutes paragraph 415.224(a) in Schedule 2 to the Principal Regulations with new paragraph 415.224(a).
Currently, paragraph 415.224(a) requires that, where sponsorship is a criterion for the grant of a Subclass 415 (Foreign Government Agency) visa, a person or organisation has been approved as the sponsor for that applicant.
New paragraph 415.224(a) will preserve the operation of the provision but also clarify that the source of the authority to approve a person or organisation as a sponsor is subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [6] – Schedule 2, paragraph 418.224(a)
This item substitutes paragraph 418.224(a) in Schedule 2 to the Principal Regulations with new paragraph 418.224(a).
Currently, paragraph 418.224(a) requires that, where sponsorship is a criterion for the grant of a Subclass 418 (Educational) visa, an institution, school or college has been approved as the sponsor for that applicant.
New paragraph 418.224(a) preserves the operation of the provision but also clarifies that the source of the authority to approve a sponsor is subregulation 1.20AA(2).
The purpose of this amendment is to make it clear in the legislation that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [7] – Schedule 2, clause 420.224
This item substitutes clause 420.224 in Schedule 2 to the Principal Regulations with new clause 420.224.
Currently, clause 420.224 requires that, where sponsorship is a criterion for the grant of a Subclass 420 (Entertainment) visa, a person or organisation has been approved as the sponsor for that applicant and the sponsorship fee prescribed in regulation 5.38 has been paid.
New clause 420.224 preserves the operation of the provision but also clarifies that the source of the authority to approve a person or organisation as a sponsor is subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [8] – Schedule 2, after clause 421.224
This item inserts new clause 421.224A in Schedule 2 to the Principal Regulations.
Clause 421.224 requires applicants for a Subclass 421 (Sport) visa to be sponsored in certain circumstances. New clause 421.224A requires that, where sponsorship is a criterion for the grant of the relevant visa under clause 421.224, the Minister has approved a person or an organisation as a sponsor of that applicant under subregulation 1.20AA (2) and the sponsorship fee prescribed in regulation 5.38 has been paid.
New clause 421.224A preserves the operation of the sponsorship requirement in clause 421.224 but also clarifies that the source of the authority to approve a person or organisation as a sponsor is subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [9] – Schedule 2, paragraph 422.222(d)
This item substitutes paragraph 422.222(d) in Schedule 2 to the Principal Regulations with new paragraph 422.222.
Currently, clause 422.222 requires that, where sponsorship is a criterion for the grant of a Subclass 422 (Medical Practitioner) visa, a person or organisation has been approved as the sponsor for that applicant and the sponsorship fee prescribed in regulation 5.38 has been paid.
New paragraph 422.222 preserves the operation of the provision but also clarifies that the source of the authority to approve a person or organisation as a sponsor is
subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority for the approval (or refusal to approve) of a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [10] – Schedule 2, paragraph 423.223(a)
This item substitutes paragraph 423.223(a) in Schedule 2 to the Principal Regulations with new paragraph 423.223(a).
Currently, clause 423.223 requires that, where sponsorship is a criterion for the grant of a Subclass 423 (Media and Film Staff) visa, a person or organisation has been approved as the sponsor for that applicant and the sponsorship fee prescribed in regulation 5.38 has been paid.
New paragraph 422.223(a) preserves the operation of the provision but also clarifies that the source of the authority to approve a person or organisation as a sponsor is
subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [11] – Schedule 2, paragraph 427.231(a)
This item substitutes paragraph 427.231(a) in Schedule 2 to the Principal Regulations with new paragraph 427.231(a).
Currently, paragraph 427.231(a) requires that, where sponsorship is a criterion for the grant of a Subclass 427 (Domestic Worker (Temporary) – Executive) visa, a person or organisation has been approved as the sponsor for that applicant.
New paragraph 427.231(a) preserves the operation of the provision but also clarifies that the source of the authority to approve a person or organisation as a sponsor is
subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Item [12] – Schedule 2, clause 428.222
This item substitutes clause 428.222 in Schedule 2 to the Principal Regulations with new clause 428.222.
Currently, clause 428.222 requires that an applicant for a Subclass 428 (Religious Worker) visa must be sponsored by a religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation, and that organisation has been approved as a sponsor for that applicant.
New clause 428.222 preserves the operation of the provision but also clarifies that the source of the authority to approve a person or organisation as a sponsor is subregulation 1.20AA(2).
The purpose of this amendment is to make it clear that the relevant authority in the Principal Regulations for the approval of (or refusal to approve) a sponsor, in relation to an application for a visa of a kind specified in new subregulation 1.20AA(1), is new subregulation 1.20AA(2).
Schedule 4 – Amendments relating to assurances of support
Item [1] – Omission of clauses in Schedule 2
This item omits from Parts 119, 120, 121, 124, 855, 856, 857, and 858 of Schedule 2 to the Principal Regulations the clauses which relate to a discretion for the Minister to request an assurance of support in relation to an applicant for the relevant visa.
The clauses which this item omits are clauses 119.224, 119.324, 120.223, 120.324, 121.225, 121.324, 124.223, 124.324, 855.224, 855.323, 856.224, 856.323, 857.224, 857.323, 858.222 and 858.323.
Clauses 119.224, 120.223, 121.225, 124.223, 855.224, 856.224, 857.224 and 858.222 relate, respectively, to primary criteria for visa subclasses 119 (Regional Sponsored Migration Scheme), 120 (Labour Agreement), 121 (Employer Nomination), 124 Distinguished Talent (Australian Support), 855 (Labour Agreement), 856 (Employer Nomination Scheme), 857 (Regional Sponsored Migration Scheme) and 858 (Distinguished Talent). The clauses provide the Minister with a discretion to request an assurance of support in relation to the primary applicant, and if the assurance of support is requested then the Minister must be satisfied that the assurance has been accepted by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs.
Clauses 119.324, 120.324, 121.324, 124.324, 855.323, 856.323, 857.323 and 858.323 relate, respectively, to secondary criteria for visa subclasses 119 (Regional Sponsored Migration Scheme), 120 (Labour Agreement), 121 (Employer Nomination), 124 Distinguished Talent (Australian Support), 855 (Labour Agreement), 856 (Employer Nomination Scheme), 857 (Regional Sponsored Migration Scheme) and 858 (Distinguished Talent). The clauses provide that if the Minister has requested an assurance of support in relation to the primary applicant, the Minister must be satisfied that the secondary applicant has either been included in the primary applicant’s assurance of support, or has their own separate assurance of support.
An assurance of support is an undertaking by a person (who is not necessarily the sponsor of the visa applicant), to repay to Centrelink certain recoverable benefits paid during the first two years after either grant of the relevant visa, or entry to Australia as a holder of the visa, whichever happens later.
The purpose of this amendment is to give effect to the recommendation arising from a 2006 multi-agency review of the assurance of support scheme that removal of the assurance of support requirement from these visa subclasses would improve business efficacy by reducing high administration costs and providing quicker processing times for clients.