EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 71

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2010 (No. 4)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

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

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to rectify an administrative error which resulted in the removal of certain criteria in some student visa subclasses.

 

In particular, the Regulations make amendments to the Principal Regulations to:

 

• reinstate certain time of decision criteria requirements in relation to whether the applicant is a genuine applicant for entry and stay as a student, and that they have access to funds demonstrated or declared as required for Subclass 571 (Schools Sector); Subclass 572 (Vocational Education and Training Sector); Subclass 573 (Higher Education Sector); and Subclass 574 (Postgraduate Research Sector) visas; and

 

• provide that the existing criteria in the above subclasses requiring certain applicants to give the Minister for Immigration and Citizenship evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant remains in the Principal Regulations.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on 19 April 2010.

 

The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was low or no compliance cost on business or impact on competition in relation to these amendments.

No consultations were conducted as the amendments have not relevant implications for any external agencies or other bodies.

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

 

 

ATTACHMENT

 

Details of the Migration Amendment Regulations 2010 (No. 4)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2010 (No. 4).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 19 April 2010.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

Subregulation 3(1) provides that Schedule 1 amends the Migration Regulations 1994 (the Principal Regulations).

 

Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to an application for a visa made on or after 27 March 2010, but not finally determined (within the meaning of subsection 5(9) of the Act) before 19 April 2010; or made on or after 19 April 2010.

Schedule 1 – Amendments

Item [1] – Schedule 2, paragraph 571.223(2)(a)

This item substitutes paragraph 571.223(2)(a) with new paragraph 571.223(2)(a) in Part 571 of Schedule 2 to the Principal Regulations.

Paragraph 571.223(2)(a) currently provides that, for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.

The new paragraph 571.223(2)(a) provides that an applicant meets the requirements of subclause 571.223(2) if, for an applicant who is not a person designated under regulation 2.07AO:

• the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
• the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
• the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
• any other relevant matter; and
• the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A to the Principal Regulations provides, under regulation 1.44, the evidentiary requirements for student visas and specifies, among other things, the English language proficiency, financial capacity and other requirements the applicant must give as evidence to the Minister.

Regulation 2.07AO limits applications for certain substantive visas by specified persons.

This amendment ensures that an applicant for a student visa must provide the Minister with evidence that they are able to satisfy the evidentiary requirements specified in Schedule 5A at the highest assessment level in relation to the selected course of study relevant to the applicant. The amendment also ensures that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions to which the visa is granted and any other relevant matter. The amendment further requires the Minister to be satisfied that the applicant has access to the funds declared under Schedule 5A to the Principal Regulations and that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold the student visa.

The purpose of this amendment is to reinstate the policy intention to have these criterion in the Principal Regulations and rectify a substitution by Migration Amendment Regulations 2010 (No. 2) that resulted in the omission of the criteria contained in the proposed new subparagraphs 571.223(2)(a)(ii) and (iii).

Item [2] – Schedule 2, paragraph 572.223(2)(a)

This item substitutes paragraph 572.223(2)(a) with new paragraph 572.223(2)(a) in Part 572 of Schedule 2 to the Principal Regulations.

Paragraph 572.223(2)(a) currently provides that, for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.

The new paragraph 572.223(2)(a) provides that an applicant meets the requirements of subclause 572.223(2) if, for an applicant who is not a person designated under regulation 2.07AO:

• the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
• the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
• the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
• any other relevant matter; and
• the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A to the Principal Regulations provides, under regulation 1.44, the evidentiary requirements for student visas and specifies, among other things, the English language proficiency, financial capacity and other requirements the applicant must give as evidence to the Minister.

Regulation 2.07AO limits applications for certain substantive visas by specified persons.

This amendment ensures that an applicant for a student visa must provide the Minister with evidence that they are able to satisfy the evidentiary requirements specified in Schedule 5A at the highest assessment level in relation to the selected course of study relevant to the applicant. The amendment also ensures that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions to which the visa is granted and any other relevant matter. The amendment further requires the Minister to be satisfied that the applicant has access to the funds declared under Schedule 5A to the Principal Regulations and that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold the student visa.

The purpose of this amendment is to reinstate the policy intention to have these criterion in the Principal Regulations and rectify a substitution by Migration Amendment Regulations 2010 (No. 2) that resulted in the omission of the criteria contained in the proposed new subparagraphs 572.223(2)(a)(ii) and (iii).

Item [3] – Schedule 2, paragraph 573.223(2)(a)

This item substitutes paragraph 573.223(2)(a) with new paragraph 573.223(2)(a) in Part 573 of Schedule 2 to the Principal Regulations.

Paragraph 573.223(2)(a) currently provides that, for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.

The new paragraph 573.223(2)(a) provides that an applicant meets the requirements of subclause 573.223(2) if, for an applicant who is not a person designated under regulation 2.07AO:

• the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
• the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
• the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
• any other relevant matter; and
• the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A to the Principal Regulations provides, under regulation 1.44, the evidentiary requirements for student visas and specifies, among other things, the English language proficiency, financial capacity and other requirements the applicant must give as evidence to the Minister.

Regulation 2.07AO limits applications for certain substantive visas by specified persons.

This amendment ensures that an applicant for a student visa must provide the Minister with evidence that they are able to satisfy the evidentiary requirements specified in Schedule 5A at the highest assessment level in relation to the selected course of study relevant to the applicant. The amendment also ensures that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions to which the visa is granted and any other relevant matter. The amendment further requires the Minister to be satisfied that the applicant has access to the funds declared under Schedule 5A to the Principal Regulations and that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold the student visa.

The purpose of this amendment is to reinstate the policy intention to have these criterion in the Principal Regulations and rectify a substitution by Migration Amendment Regulations 2010 (No. 2) that resulted in the omission of the criteria contained in the proposed new subparagraphs 573.223(2)(a)(ii) and (iii).

Item [4] – Schedule 2, paragraph 574.223(2)(a)

This item substitutes paragraph 574.223(2)(a) with new paragraph 574.223(2)(a) in Part 574 of Schedule 2 to the Principal Regulations.

Paragraph 574.223(2)(a) currently provides that, for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant.

The new paragraph 574.223(2)(a) provides that an applicant meets the requirements of subclause 574.223(2) if, for an applicant who is not a person designated under regulation 2.07AO:

• the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
• the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
• the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
• any other relevant matter; and
• the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

Schedule 5A to the Principal Regulations provides, under regulation 1.44, the evidentiary requirements for student visas and specifies, among other things, the English language proficiency, financial capacity and other requirements the applicant must give as evidence to the Minister.

Regulation 2.07AO limits applications for certain substantive visas by specified persons.

This amendment ensures that an applicant for a student visa must provide the Minister with evidence that they are able to satisfy the evidentiary requirements specified in Schedule 5A at the highest assessment level in relation to the selected course of study relevant to the applicant. The amendment also ensures that the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions to which the visa is granted and any other relevant matter. The amendment further requires the Minister to be satisfied that the applicant has access to the funds declared under Schedule 5A to the Principal Regulations and that the funds which are demonstrated or declared for the financial capacity requirement will be available to the visa applicant while they hold the student visa.

The purpose of this amendment is to reinstate the policy intention to have these criterion in the Principal Regulations and rectify a substitution by Migration Amendment Regulations 2010 (No. 2) that resulted in the omission of the criteria contained in the proposed new subparagraphs 574.223(2)(a)(ii) and (iii).