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MIGRATION AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 42 OF 2009)
EXPLANATORY STATEMENT
Migration Act 1958
Migration Amendment Regulations 2009 (No. 2)
Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides, in part, that the Governor-General may make regulations, not inconsistent with that Act, prescribing all matters which by that Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to that Act.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 to enable certain holders of a Subclass 457 (Business (Long Stay)) visa, who were granted that visa on the basis of meeting certain secondary criteria, to continue to be considered the member of the family unit (MFU) of a primary holder of a Subclass 457 visa, or dependent child of an interdependent partner of a primary holder of a Subclass 457 visa.
Provided such holders are not in a spousal or interdependent relationship and are under the age of 21, they will not have to satisfy the general MFU and dependent child of interdependent partner requirements in a subsequent Subclass 457 visa application. For example, they would not need to prove they are dependent on the primary Subclass 457 visa holder.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 28 March 2009.
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.
No consultation was necessary in relation to these amendments because these amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
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.
In addition to subsection 504(1) of the Act, the following provisions may apply:
· Subsection 29(2) and 29(3) provide that the Regulations provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia.
· Subsection 31(3) provides that the Regulations may prescribe criteria for a visa of a specified class.
· Subsection 31(4) provides that the Regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
· Subsection 40(1) provides that the Regulations may provide that a visa of a specified class may only be granted in certain circumstances.
ATTACHMENT B
Details of the Migration Amendment Regulations 2009 (No. 2)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 2).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 28 March 2009.
Regulation 3 – Amendment of Migration Regulations 1994
Subregulation 3(1) provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.
Subregulation 3(2) provides that the amendments set out in Schedule 1 apply in relation to an application for a visa made on or after 28 March 2009 and an application for a visa made, but not finally determined, before 28 March 2009.
Schedule 1 – Amendments
Item [1] – After subregulation 1.12(9)
This item inserts new subregulation 1.12(10) in Division 1.2 of Part 1 of the Principal Regulations.
Regulation 1.12 sets out when a person is a member of the family unit (MFU) of another person. Subregulation 1.12(1) provides that generally, a person is an MFU of another person (‘the family head’) if they are:
· a spouse of the family head;
· a dependent child of the family head or of a spouse of the family head;
· a dependent child of a dependent child of the family head or of a spouse of the family head; or
· a relative of the family head or of a spouse of the family head in certain circumstances.
New subregulation 1.12(10) provides that in addition to current subregulation 1.12(1), a person is an MFU of the holder of a Subclass 457 (Business (Long Stay) visa in the circumstances set out in paragraphs (a) to (f).
Paragraph (a) provides that the holder must have been granted the Subclass 457 visa on the basis that they satisfied the primary criteria for grant of that visa.
Paragraph (b) provides that the person must hold a Subclass 457 visa, or the last substantive visa held by the person must have been a Subclass 457 visa, granted on the basis that they were an MFU by being:
· a dependent child of the family head or of a spouse of the family head;
· a dependent child of a dependent child of the family head or of a spouse of the family head; or
· a relative of the family head or of the spouse of the family head in certain circumstances.
Paragraph (c) deals with persons who were granted an initial Subclass 457 visa on the basis that they were:
· a dependent child of the spouse of a person who holds a Subclass 457 visa having satisfied the primary criteria for grant of that visa;
· a dependent child of the dependent child of the spouse of a person who holds a Subclass 457 visa having satisfied the primary criteria for grant of that visa; and
· a relative of the spouse of a person who holds a Subclass 457 visa having satisfied the primary criteria for grant of that visa.
Such persons will meet paragraph (c) only if the relationship between the primary holder of a Subclass 457 visa and the spouse is still in existence at the time of decision on the subsequent Subclass 457 visa application. If the relationship between the primary Subclass 457 visa holder and his or her spouse breaks down, there is an insufficient nexus between the primary holder of a Subclass 457 visa and a person who was granted a Subclass 457 visa on the basis of a relationship with the spouse of the primary Subclass 457 visa holder, to justify the person receiving the benefits of this extension to the MFU criteria.
Subparagraph (d)(i) provides that the person must have a current valid application for a Temporary Business Entry (Class UC) visa. Subparagraph (d)(ii) provides that the person must not have made a valid application for any other class of visa, unless that application has been finally determined or has been withdrawn. Paragraph (d) ensures that the new MFU extension applies only to a subsequent Subclass 457 visa application. A person will not be able to use this extension of the MFU criteria to apply for and be granted any visa other than a Subclass 457 visa. For example, a person who was granted an initial Subclass 457 visa on the basis of meeting the MFU criteria, would not be able to satisfy subregulation 1.12(10) in a subsequent application for grant of a permanent resident visa.
Paragraph (e) provides that the person must be under the age of 21. This age limitation seeks to ensure that persons who would otherwise be considered independent are not able to remain in Australia indefinitely under a skilled temporary entry Subclass 457 visa program on the basis that they were previously dependent on the skilled visa holder.
Subparagraph (f)(i) provides that the person must not be the spouse of another person. Spouses are excluded from these amendments for three reasons. Firstly, if a person continues to be the spouse of a person who holds a Subclass 457 visa on the basis of satisfying the primary criteria for grant of that visa, that person will satisfy the general requirement for an MFU under subregulation 1.12(1). Secondly, a person who was granted an initial Subclass 457 visa on the basis of being an MFU and who has entered into a spousal relationship since that time, should be considered a part of a new family unit and therefore should not be entitled to gain the benefit of this extension of the MFU definition. Finally, the intention is that persons who were granted an initial Subclass 457 visa on the basis of being a spouse of a person who satisfied the primary criteria for grant of a Subclass 457 visa, should not be entitled to gain the benefit of this extension of the MFU definition if that spousal relationship is no longer in existence at the time of the subsequent Subclass 457 visa application. “Spouse” is defined in regulation 1.15A of the Principal Regulations.
Subparagraph (f)(ii) provides that the person must not be the interdependent partner of another person. An interdependent partner is a person who is in an interdependent relationship. Regulation 1.09A sets out who is in an interdependent relationship. Generally, a person is in an interdependent relationship if:
· they are not within a prohibited degree of relationship;
· they have both turned 18; and
· the Minister is satisfied that they have a mutual commitment to a shared life to the exclusion of another relationship, the relationship is genuine and continuing and they live together or do not live separately and apart on a permanent basis.
Persons who are in an interdependent relationship are excluded from these amendments for the same policy reasons as spouses are excluded.
Generally, new subregulation 1.12(10) seeks to minimise the potential for certain Subclass 457 visa holders to be separated from their families. Some Subclass 457 visa holders who satisfied the primary criteria for grant of that visa are sponsored and nominated for a subsequent Subclass 457 visa. In some instances, these visa holders may have families who are also the holders of a Subclass 457 visa having been granted that visa on the basis of being an MFU of the primary holder. However, there are instances where a family member may have satisfied the MFU criteria in the initial Subclass 457 visa application but, with the passing of time, is no longer able to satisfy the MFU criteria in the subsequent Subclass 457 visa application. For example, a person may satisfy the MFU criteria in the initial Subclass 457 visa application on the basis that they are under the age of 18 but by the time of the subsequent Subclass 457 visa application, they are no longer under the age of 18.
Item [2] – Schedule 2, after clause 457.321
This item inserts new clause 457.321A in Part 457 of Schedule 2 to the Principal Regulations.
New clause 457.321A is a criterion to be satisfied at time of decision for persons seeking to satisfy the secondary criteria for grant of a Subclass 457 (Business (Long Stay)) visa. New clause 457.321A provides additional circumstances in which a person (‘person 1’) will be considered a dependent child of an interdependent partner of another person (‘person 2’) under current clause 457.321. An interdependent partner is a person who is in an interdependent relationship. Regulation 1.09A provides that generally, a person is in an interdependent relationship if:
· they are not within a prohibited degree of relationship;
· they have both turned 18; and
· the Minister is satisfied that they have a mutual commitment to a shared life to the exclusion of another relationship, the relationship is genuine and continuing and they live together or do not live separately and apart on a permanent basis.
Paragraph 457.321A(a) provides that person 2 must hold a Subclass 457 visa having met the primary criteria for grant of that visa.
Paragraph 457.321A(b) provides that person 1 must hold a Subclass 457 visa, or the last substantive visa held by person 1 was a Subclass 457 visa and that they must have been granted that visa on the basis that they were a dependent child of the interdependent partner of person 2.
Paragraph 457.321A(c) provides that the interdependent relationship between the interdependent partner and another person must still be in existence. If the interdependent relationship between the primary holder of a Subclass 457 visa and his or her interdependent partner breaks down, there is an insufficient nexus between the dependent child of the interdependent partner and the primary holder of a Subclass 457 visa to justify them receiving the benefits of the extension to the interdependent relationship criteria.
Paragraph 457.321A(d) provides that the person must be under the age of 21. This age limitation seeks to ensure that persons, who would otherwise be considered independent, are not able to remain in Australia indefinitely under a skilled temporary entry Subclass 457 visa program on the basis that they were previously dependent on the skilled visa holder.
Subparagraph 457.321A(e)(i) provides that the person must not be the spouse of another person. Spouses are excluded from these amendments for three reasons. Firstly, if a person continues to be the spouse of a person who holds a Subclass 457 visa on the basis of satisfying the primary criteria for grant of that visa, that person will satisfy the general requirement for an MFU under subregulation 1.12(1). Secondly, a person who was granted an initial Subclass 457 visa on the basis of being an MFU and who has entered into a spousal relationship since that time, should be considered a part of a new family unit and therefore should not be entitled to gain the benefit of this extension of the MFU definition. Finally, the intention is that persons who were granted an initial Subclass 457 visa on the basis of being a spouse of a person who satisfied the primary criteria for grant of a Subclass 457 visa, should not be entitled to gain the benefit of this extension of the MFU definition if that spousal relationship is no longer in existence at the time of the subsequent Subclass 457 visa application. “Spouse” is defined in regulation 1.15A of the Principal Regulations.
Subparagraph 457.321A(e)(ii) provides that the person is not the interdependent partner of another person. Persons who are in an interdependent relationship are excluded from these amendments for the same policy reasons as spouses are excluded.
Generally, new clause 457.321A seeks to minimise the potential for certain Subclass 457 visa holders to be separated from their families. Some Subclass 457 visa holders who satisfied the primary criteria for grant of that visa, are sponsored and nominated for a subsequent Subclass 457 visa. In some instances, these visa holders may have families who are also the holders of a Subclass 457 visa having been granted that visa on the basis of being a dependent child of an interdependent partner of the primary holder. However, there are instances where a family member may be a dependent child of an interdependent partner in the initial Subclass 457 visa application but with the passing of time, is no longer able to be considered a dependent child. For example, a person may be a dependent child of an interdependent partner in the initial Subclass 457 visa application but by the time of the subsequent Subclass 457 visa application, they may no longer be under the age of 18 years.
Item [3] – Schedule 2, paragraph 457.511(d)
This item substitutes paragraph 457.511(d) in Part 457 of Schedule 2 to the Principal Regulations with new paragraphs 457.511(d), (e) and (f).
Clause 457.511 sets out when a Subclass 457 (Business (Long Stay)) visa is in effect. New paragraphs 457.511(d) and (e) provide that where a Subclass 457 visa is granted on the basis that the holder was a member of the family unit in the circumstances described in subregulation 1.12(10) (inserted by item [1] of this Schedule) or a dependent child of an interdependent partner in the circumstances described in clause 457.321A (inserted by item [2] of this Schedule) then the visa is in effect until the earlier of:
· the end of the period specified in paragraph (a), (b) or (c) (that would have applied to the holder); and
· the end of the day before the holder’s 21st birthday.
Paragraph (a) provides that where a Subclass 457 visa is granted to a holder who is in Australia at time of grant, the holder may remain in Australia for a period of more than 3 months, but not more than 4 years, from the date of grant. Paragraph (b) provides that where a Subclass 457 visa is granted to a holder who is outside Australia at time of grant, the holder may remain in Australia for a period of more than 3 months, but not more than 4 years, from the date of entry specified by the Minister. Paragraph (c) provides that where a Subclass 457 visa is granted on the basis that the holder met the requirements of subclause 457.223(7A) (independent executives), the holder may remain in Australia for a period of 2 years from date of grant.
The effect of new paragraphs (d) and (e) is that a visa granted in accordance with new subregulation 1.12(10) or clause 457.321A is to remain in effect until the earlier of the day before the holder’s 21st birthday, or the end of the period in paragraph (a), (b) or (c), whichever is relevant.
New paragraph 457.511(f) provides that a Subclass 457 visa allows the applicant to travel to and enter Australia on multiple occasions before the end of the relevant period. New paragraph (f) retains what is in current paragraph 457.511(d).