Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATION 2012 (NO. 7) (SLI NO 255 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 255

 

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulation 2012 (No. 7)

 

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

 

In addition, regulations may be made pursuant to the provisions of the Act in Attachment A.

 

The purpose of the Regulation is to amend Migration Regulations 1994 ('the Principal Regulations') to strengthen and improve immigration policy.  In particular, the Regulation amends the Principal Regulations to:

 

 

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the Regulation is compatible with human rights because it advances the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.  A copy of the Statement is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

 

The Office of Best Practice Regulation ('the OBPR') has been consulted in relation to the Significant Investor amendments made by the Regulation.  The OBPR considers that the changes are of a minor nature and no further analysis (in form of a Regulation Impact Statement) is required.  The OBPR reference number is 2012/13762.

 

In relation to amendments in items [10], [11], [26], [27], and [28], no consultations were made as these are minor technical amendments to the Principal Regulations.

 

In relation to the remaining amendments in items [1] to [9] and [12] to [25] (the Significant Investor amendments), the Department of Immigration and Citizenship ('the Department') consulted with the following list of government agencies:

 

Federal Departments and Agencies

 

 

State/Territory Government Departments

 

 

Consultations were undertaken with the above external agencies to explore the options and implementation implications of the new Significant Investor stream and the new Significant Investor Extension stream.

 

Consultations with Federal Departments and Agencies focussed on the conceptual framework of the proposal, and any links and implications for existing Government policy and legislation.

 

Consultations with State and Territory governments focussed on investment options leading towards the economic benefits to jurisdictions from foreign investment.

 

In addition, feedback from stakeholders from the Financial Services Industry was sought, particularly in relation to the practical operation of the visa criteria.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 


ATTACHMENT A

 

 

AUTHORISING PROVISIONS

 

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, the following provisions may apply:

 

*         subsection 31(1), which provides that there are to be prescribed classes of visas.

 

*         subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

 

*         subsection 31(4), which 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 31(5), which provides that a visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.

 

*         subsection 40(1), which provide that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

 

*         subsection 41(1), which provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

 

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

 

*         subsection 45B(1), which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.

 

*         subsection 45C(1), which provides that the regulations may provide that visa application charge may be payable in instalments, specify how those instalments are to be calculated and specify when instalments are payable.

 

*         subsection 46(2)(a), which provides that, subject to subsection 46(2A), an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection.

 

*         subsection 46(2)(b), which provides that, subject to subsection 46(2A), an application for a visa is valid if under the regulations, the application is taken to have been validly made.

 

*         paragraph 504(1)(a), which provides that the regulations may provide for the charging of and recovery of fees in respect of any matter under the Act of the regulations.

 

*         paragraph 504(1)(c), which provides that the regulations may provide for the furnishing or obtaining of information with respect to:

o   persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and

o   persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and

o   persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier

 

*         paragraph 504(1)(d), which provides that the regulations may provide for the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph 504(1)(c).

 


ATTACHMENT B

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

*         Items [1] to [9] and [12] to [25] - Amendments of Migration Regulations 1994 relating to the Significant Investor stream and the Significant Investor Extension stream

 

Overview of the Regulation Amendment

 

The amendments are designed to extend the role of the Business Innovation and Investment program in supporting the national economy by creating a new visa stream to provide for investors with significant fiscal resources who wish to invest in and migrate to Australia.

 

In particular, the proposed amendments to the Migration Regulations 1994 introduce a streamlined and simplified pathway to permanent residence for migrant investors who invest $5 million into complying investments in Australia for a minimum period of four years.  Complying investments include Commonwealth or state or territory government bonds, ASIC regulated managed funds with a mandate for investing in Australia and direct investment into private Australian companies not listed on the Australian stock exchange.

 

The major changes include that visa applicants do not need to satisfy the innovation points test and there are no upper age limits.  The new permanent visa stream features a requirement that the applicant must have been in Australia for at least 40 days per year (or part year) that the applicant holds or has held the provisional visa, although it will not be necessary for the applicant to be in Australia for 40 days each year.

 

Human rights implications

 

Rights to freedom of movement - Article 12 of the International Covenant on Civil and Political Rights

 

Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

 

"1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant."

 

The scope of the right to freedom of movement permits a country to impose restrictions on who may enter it, such as those with a valid visa.  It also permits a country to allow entry of a non-citizen on conditions that allow the person lesser rights of freedom of movement, provided those restrictions comply with the country's international obligations.  For example, some visas impose conditions on a visa holder to reside and work in a particular region.

 

Intending migrants for the Business Innovation and Investment visas are required to be nominated by a State or Territory government as part of the application process.  The purpose of the nomination is to encourage migrants to invest, live and work in the nominating State or Territory, thereby promoting economic development across Australia.  However, it is important to note that Business Innovation and Investment visa holders are free to travel throughout Australia without restriction and to live in any State or Territory of Australia.

 

Hence the proposed amendments to the regulations to the Business Innovation and Investment visas would support Article 12 of the ICCPR.

 

Right to work and rights in work - Articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

 

Article 6(1) provides "The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right."

 

Article 7 provides "The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work."

 

The scope of the right to work and rights in work is to assure individuals their right to freely choose and accept work.  It should also be protected by providing the worker with just and favourable conditions of work, particularly in relation to safe working conditions.

 

The proposed amendments to the regulations of the Business Innovation and Investment visas do not conflict with the full work rights already offered under the program and therefore the visas would support Articles 6(1) and 7 of the ICESCR.

 

Conclusion

 

The Regulation Amendment is compatible with human rights because it advances the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

*         Items [10] to [11] and [28] - Technical amendments of Migration Regulations 1994

 

Overview of the Legislative Instrument

 

The amendment of two items of Schedule 1 relating to application forms for substantive visas that are also prescribed as application forms for a bridging visa.  The purpose of these amendments is to ensure that all relevant forms are prescribed as bridging visa application forms, and to ensure that, where appropriate, the word '(Internet)' appears after the form number to make it clear to clients that the form which is required by the relevant Schedule 1 provision is actually an internet-based form (required for internet applications) rather than a paper form.

 

Human rights implications

 

These amendments do not engage any of the applicable rights or freedoms.  The amendments are minor technical amendments that to do not have a substantive impact on the applicable human rights.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

*         Items [26] and [27] - Technical amendments of Migration Regulations 1994

 

Overview of the Legislative Instrument

 

Schedule 1 contains two minor technical amendments to the Migration Regulations 1994.  The first amendment renumbers the second occurring Part 6 in Schedule 13 to the Migration Regulations 1994 as Part 7.  The second amendment renumbers item 601, under current Part 6, as item 701.

 

Human rights implications

 

These amendments do not engage any of the applicable rights or freedoms.  The amendments are minor technical amendments that to do not have a substantive impact on the applicable human rights.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 


ATTACHMENT C

 

 

Details of the Migration Amendment Regulation 2012 (No. 7)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment Regulation 2012 (No. 7).

 

Section 2 - Commencement

 

This section provides that the Regulation commences on 24 November 2012.

 

Section 3 - Amendment of Migration Regulations 1994

 

This section provides that Schedule 1 amends the Migration Regulations 1994 ('the Principal Regulations').

 

Schedule 1 - Amendment of Migration Regulations 1994

 

Item [1] - Regulation 1.03

 

This item amends regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations to insert a reference to regulation 5.19B, which sets out the requirements for an investment to be a 'complying investment'.

 

This amendment is consequential to the amendments at item [3], which inserts regulation 5.19B.

 

Item [2] - Regulation 1.03

 

This item amends regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations to insert a definition of the term 'managed fund'.

 

The definition provides that the term 'managed fund' means an investment to which all of the following apply:

 

 

The purpose of this amendment is to define the characteristics of a managed fund as paragraph 5.19B(2)(c) at item [3] allows an investment in a managed fund to be a category of investment that could be made to be a 'complying investment' within the meaning of regulation 5.19B.

 

This amendment is consequential to amendments at item [3] which inserts regulation 5.19B.

 

Item [3] - after regulation 5.19A

 

This item inserts regulation 5.19B into Division 5.3 of Part 5 of the Principal Regulations.

 

Subregulation 5.19B(1) provides that an investment by a person (the investor) is a complying investment if all the requirements in regulation 5.19B are met.

 

Subregulation 5.19B(2) provides that the investment must consist of one or more of the following:

 

 

Subregulation 5.19B(3) provides that the assets used to make the investments are unencumbered and lawfully acquired.

 

Subregulation 5.19B(4) provides that the investor must be an individual.

 

Subregulation 5.19B(5) provides that investors must make their investment:

 

*         personally; or

*         with their spouse or de facto partner; or

*         through a company in which the investor and/or the investor and their spouse or de facto partner hold all of the issued shares; or

*         through a trust that is lawfully established and the investor and/or the investor and their spouse or de facto partner are the only trustees and beneficiaries.

 

Where the trustee and the beneficiary are the same individual, the trust would not be lawfully established.

 

Subregulation 5.19B(6) provides the investor with the ability to switch between investments once they have been granted a Subclass 188 visa in either the Significant Investor stream or the Significant Investor Extension stream and sets out the relevant requirements that must be met for the switched investments to continue to satisfy the requirements for complying investment.  The relevant requirements include:

 

 

The purpose of subregulation 5.19B(6) is to allow the investor to capitalise on different financial opportunities within the different categories of investment permitted under subregulation 5.19B(2).  The operation of subregulation 5.19B(6) is complemented by the amendments at item [25], which inserts condition 8557.  Condition 8557 requires a visa holder to hold the complying investment for the whole of the visa period.

 

The purpose of regulation 5.19B is to set out the requirement that must be met for an investment or investments to be a complying investment.  It is a criterion for the grant of the Subclass 188 visa in either the Significant Investor stream or the Significant Investor Extension stream and for the Subclass 888 visa in the Significant Investor stream that the visa applicant must have made and hold a complying investment.

 

This amendment is consequential to the amendments at items [15] and [24], which insert a Significant Investor stream and a Significant Investor Extension stream in Part 188 of Schedule 2, and a Significant Investor stream in Part 888 of Schedule 2 to the Principal Regulations.

 

Item [4] - Schedule 1, subitem 1104BA(4), table, item 1

 

This item amends Item 1 of the table in subitem 1104BA(4) of Part 1 of Schedule 1 to the Principal Regulations to substitute the words 'Extension stream' with 'Business Innovation Extension stream'.

 

This amendment is consequential to the amendments at item [14], which amends Subdivision 188.23 of Schedule 2 to rename the heading of 'Extension stream' as the 'Business Innovation Extension stream'.

 

Item [5] - Schedule 1, subitem 1104BA(4), table, item 2, paragraph (a)

 

This item amends paragraph (a) of Item 2 of the table in subitem 1104BA(4) of Part 1 of Schedule 1 to the Principal Regulations to substitute the words 'Extension stream' with 'Business Innovation Extension stream'.

 

This amendment is consequential to the amendments in item [14], which amends Subdivision 188.23 of Schedule 2 to rename the heading of 'Extension stream' as the 'Business Innovation Extension stream'.

 

Item [6] - Schedule 1, after subitem 1104BA(5)

 

This item inserts subitem 1104BA(5A) into Part 1 of Schedule 1 to the Principal Regulations.

 

Subitem 1104BA(5A) provides for the requirements that must be met by the applicant to make a valid application for a Subclass 888 visa in the Significant Investor stream.  Those requirements are that:

 

 

The purpose of this amendment is to allow the holders of Subclass 188 visas in either the Significant Investor stream or the Significant Investor Extension stream to make a valid application for a Subclass 888 visa in the Significant Investor stream.

 

Item [7] - Schedule 1, paragraph 1202B(2)(a), table, item 1

 

This item amends Item 1 in paragraph (2)(a) of item 1202B of Part 2 of Schedule 1 to the Principal Regulations to substitute the words 'Extension stream' with 'Business Innovation Extension stream and Significant Investor Extension stream'.

 

The purpose of this amendment is to provide for the visa application charge and allow the holders of Subclass 188 visas in either the Significant Investor stream or the Significant Investor Extension stream to make a valid application for a Subclass 188 visa in the Significant Investor Extension stream.

 

This amendment is consequential to the amendments at items [14] and [15] below, which substitute the words 'Extension stream' in the heading of Subdivision 188.23 of Schedule 2 to the Principal Regulations with 'Business Innovation Extension stream' and also insert the Significant Investor stream and the Significant Investor Extension stream into Part 188 of Schedule 2.

 

Item [8] - Schedule 1, subitem 1202B(5)

 

This item amends subitem 1202B(5) of Part 2 of Schedule 1 to the Principal Regulations to substitute the words 'Extension stream' with 'Business Innovation Extension stream'.

 

This amendment is consequential to the amendments at item [14], which amends Subdivision 188.23 of Schedule 2 to rename the heading of 'Extension stream' as the 'Business Innovation Extension stream'.

 

Item [9] - Schedule 1, after subitem 1202B(6)

 

This item inserts subitems 1202B(6A) and 1202B(6B) into Part 2 of Schedule 1 to the Principal Regulations.

 

Subitem 1202B(6A) provides for the requirements that must be met for a person to make a valid application for a Subclass 188 visa in the Significant Investor stream.  Those requirements are that:

 

 

Subitem 1202B(6B) provides for the requirements that must be met for a person to make a valid application for a Subclass 188 visa in the Significant Investor Extension stream.  Those requirements are that:

 

 

This amendment relates to the amendments at item [15], which inserts a Significant Investor stream and a Significant Investor Extension stream in Part 188 of Schedule 2 to the Principal Regulations.

 

The purpose of the amendment is to set out the requirements that an applicant must meet to make a valid application for a Subclass 188 visa in the relevant streams.

 

Item [10] - Schedule 1, subitem 1301(1)

 

This item substitutes subitem 1301(1) of Schedule 1 to the Principal Regulations.  Subitem 1301(1) lists the forms that are prescribed forms for the purposes of applying for a Bridging A (Class WA) visa.

 

In particular this item inserts the word "(Internet)" after certain form numbers to make it clear to clients that the form which is required by the relevant Schedule 1 provision for a valid application is actually an internet-based form (required for internet applications) rather than a paper form.

 

The Item also includes references to new skilled visa forms (required for visas inserted by the Migration Amendment Regulation 2012 (No. 2) which commenced on 1 July 2012) and temporary work forms (required for visas inserted by the Migration Legislation Amendment Regulation 2012 (No. 4) which commences on 24 November 2012), numbers 1401, 1402, 1403, 1416 and 1420.

 

The purpose of the amendment is to ensure that an applicant for one of the substantive visas for which the form number is prescribed is also an applicant for a Bridging A (Class WA) visa.

 

Item [11] - Schedule 1, subitem 1303(1)

 

This item substitutes subitem 1303(1) of Schedule 1 to the Principal Regulations.  Subitem 1303(1) lists the forms that are prescribed forms for the purposes of applying for a Bridging C (Class WC) visa.

 

In particular the item inserts the word "(Internet)" after certain form numbers to make it clear to clients that the form which is required by the relevant Schedule 1 provision for a valid application is actually an internet-based form (required for internet applications) rather than a paper form.

 

The Item also includes references to new skilled visa forms (required for visas inserted by the Migration Amendment Regulation 2012 (No. 2) which commenced on 1 July 2012) and temporary work forms (required for visas inserted by the Migration Legislation Amendment Regulation 2012 (No. 4) which commences on 24 November 2012), numbers 1401, 1402, 1403, 1416 and 1420.

 

The purpose of the amendment is to ensure that an applicant for one of the substantive visas for which the form number is prescribed is also an applicant for a Bridging C (Class WC) visa.

 

Item [12] - Schedule 2, clause 188.113, after note 4

 

This item inserts note 5 into clause 188.113 of Schedule 2 to the Principal Regulations.  Note 5 provides that the term 'complying investment' is defined in regulation 5.19B.

 

This amendment is consequential to the amendments in item [3], which inserts regulation 5.19B.

 

Item [13] - Schedule 2, Division 188.2, first note

 

This item substitutes the first note in Division 188.2 of Schedule 2 to the Principal Regulations with a new note.

 

The new note describes which criteria each visa applicant must satisfy depending on which stream they apply for.  The new note replicates the existing note except that it refers to the 'Business Innovation Extension stream' instead of the 'Extension stream' and it adds references to the Significant Investor stream and the Significant Investor Extension stream.

 

This amendment is consequential to the amendments at items [14] and [15] below, which substitutes the words 'Extension stream' in the heading of Subdivision 188.23 of Schedule 2 to the Principal Regulations with 'Business Innovation Extension stream', and also insert the Significant Investor stream and the Significant Investor Extension stream into Part 188 of Schedule 2.

 

Item [14] -Subdivision 188.23, heading, including the note

 

This item substitutes the heading to, and the note under, Subdivision 188.23 of Schedule 2 to the Principal Regulations.

 

The amendment renames the 'Extension stream' as the 'Business Innovation Extension stream' and substitutes the note to reflect that change of name.

 

The purpose of this amendment is to clarify that the current 'Extension stream' in the Subclass 188 visa is an extension of the 'Business Innovation stream'.  This amendment and the amendment consequential to it are intended to avoid confusion between the current 'Extension stream' and the 'Significant Investor Extension stream' at item [15].

 

Item [15] - Schedule 2, after Subdivision 188.24

 

This item inserts a Subdivision 188.25 (Significant Investor) and a Subdivision 188.26 (Significant Investor Extension stream) into Division 188.2 of Schedule 2 to the Principal Regulations.

 

Subdivision 188.25 provides for the primary criteria that the applicant must satisfy in order to be granted a Subclass 188 visa in the Significant Investor stream.

 

Subdivision 188.26 provides for the primary criteria that the applicant must satisfy in order to be granted a Subclass 188 visa in the Significant Investor Extension stream.

 

The purpose of these new subdivisions is to provide for the basis upon which visa applicants may be granted a Subclass 188 visa in the Significant Investor stream or a Subclass 188 visa in the Significant Investor Extension stream.

 

Subdivision 188.25 Criteria for Significant Investor stream

 

The note under Subdivision 188.25 provides that the criteria in that subdivision are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor stream.

 

Clause 188.251 provides that an applicant must be invited by the Minister to apply for the Subclass 188 visa in the Significant Investor stream.

 

Subclause 188.252(1) provides that the applicant has made a complying investment of at least AUD5,000,000.  Regulation 5.19B, inserted by item [3], provides for what a complying investment is.  A note under subclause 188.251(1) clarifies that a complying investment may be based on one or more investments.

 

Subclause 188.252(2) provides that an applicant must have a genuine intention to hold the complying investment for at least 4 years.

 

Subclause 188.253(1) provides that an applicant has given the Minister a completed copy of approved form 1413 for each investment in a managed fund which the complying investment was based.  The note under subclause 188.253(1) describes what is included in approved form 1413.

 

Approved form 1413 includes a declaration that the investments made by a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19B(2)(c).

 

Subclause 188.253(2) provides that an applicant has given the Minister a completed copy of approved form 1412, signed by each applicant aged at least 18 years.  The note under subclause 188.253(2) describes what is included in approved form 1412.

 

Approved form 1412 is a deed of acknowledgment, undertaking and release, signed by the primary applicant and each applicant aged 18 years and over whereby each applicant acknowledges that they are responsible for their financial and legal affairs, that they undertake not to bring an action against the Commonwealth and that they release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.

 

Clause 188.254 provides that an applicant has a genuine intention to reside in the State or Territory whose government agency nominated the applicant.

 

Clause 188.255 provides that:

 

*         The applicant satisfies public interest criterion 4005;

*         Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfy public interest criterion 4005; and

*         Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

 

Public interest criterion 4005 is one of the 'health' criteria applicable to almost every visa subclass.  The health criteria are designed to minimise risks to public health in the Australian community, contain public expenditure on health and community services and ensure that Australian residents have access to health and other community services.  Under the health criteria, visa applicants' health is assessed with these factors in mind.

 

The purpose of clause 188.255 is to ensure that the all applicants is required to satisfy public interest criterion 4005, which is consistent with clauses 188.229A and 188.249 of Schedule 2 to the Principal Regulations.  It is intended that public interest criterion 4005 be applicable to each stream in the Subclass 188 visa that is not an Extension stream.

 

Subdivision 188.26 Criteria for the Significant Investor Extension stream

 

The note under Subdivision 188.26 provides that the criteria in that subdivision are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Significant Investor Extension stream.

 

Subclause 188.261(1) provides that applicants must continue to hold the complying investment that they had made for the grant of the Subclass 188 visa in either the Significant Investor stream or the Significant Investor Extension stream.

 

The purpose of the amendment is to require the applicant to continue to hold the complying investment that they made or continued to hold, when they were granted a Subclass 188 visa in the Significant Investor stream or a Subclass 188 visa in the Significant Investor Extension stream.

 

Subclause 188.261(2) sets out an additional criterion which applies to any part of the investment that is, or was, a direct investment in an Australian proprietary company.  The additional criterion provides that:

 

 

The purpose of subclause 188.261(2) is to provide an alternate criterion for visa applicants who had made a direct investment in an Australian proprietary company as part of their complying investment.  To satisfy this alternate criterion the applicant must have, or had, an ownership interest in an Australian proprietary company and that company must have, or had, operated as a qualifying business.  This alternate criterion allows for circumstances where the Australian proprietary company was not a qualifying business only because the business genuinely did not succeed.

 

Subclause 188.261(3) provides that an applicant must have given the Minister a completed copy of approved form 1413.  The note under subclause 188.261(3) describes what is included in approved form 1413.

 

Approved form 1413 includes a declaration that the investments made by a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19B(2)(c).

 

Subclause 188.261(4) provides that an applicant must have given the Minister a completed copy of approved form 1412.  The note under subclause 188.261(4) describes what is included in approved form 1412.

 

Approved form 1412 is a deed of acknowledgment, undertaking and release, signed by the primary applicant and each applicant aged 18 years and over whereby each applicant acknowledges that they are responsible for their financial and legal affairs, that they undertake not to bring an action against the Commonwealth and that they release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.

 

Clause 188.262 provides that:

 

 

Public interest criterion 4007 is one of the 'health' criteria applicable to almost every visa subclass.  The health criteria are designed to minimise risks to public health in the Australian community, contain public expenditure on health and community services and ensure that Australian residents have access to health and other community services.  Under the health criteria, visa applicants' health is assessed with these factors in mind.

 

The purpose of clause 188.262 is to ensure that the applicant is required to satisfy public interest criterion 4007, which is consistent with clause 188.234 of Schedule 2 to the Principal Regulations.  It is intended that public interest criterion 4007 be applicable to each Extension stream in the Subclass 188 visa.

 

Item [16] - Schedule 2, after clause 188.311

 

This item inserts clause 188.311A in Subdivision 188.31 of Schedule 2 to the Principal Regulations.  Subdivision 188.31 provides for the secondary criteria that an applicant must satisfy to be granted a Subclass 188 visa.  Typically, the secondary criteria apply to family members of a person who satisfies the primary criteria

 

This amendment provides that, if the applicant has turned 18 and the primary applicant holds a Subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream, the applicant has given the Minister a completed copy of approved form 1412.  The note under subclause 188.253(2) describes what is included in approved form 1412.

 

Approved form 1412 is a deed of acknowledgment, undertaking and release, signed by the primary applicant and each applicant aged 18 years and over, whereby each applicant acknowledges that they are responsible for their financial and legal affairs, that they undertake not to bring an action against the Commonwealth and that they release the Commonwealth from any liabilities in relation to any loss relating to the complying investment.

 

Item [17] - Schedule 2, subclauses 188.312(4) and (5)

 

This item substitutes subclauses 188.312(4) and (5) of Subdivision 188.31 of Schedule 2 to the Principal Regulations to include references to the Significant Investor stream and the Significant Investor Extension stream, respectively.

 

Subclause 188.312(4) previously provided that, if the primary applicant holds a Subclass 188 visa in the Business Innovation stream or the Investor stream, the applicant satisfies public interest criterion 4005.  Substituted subclause 188.312(4) replicates that subclause but adds the Significant Investor stream.

 

Subclause 188.312(4) is consequential to the amendments at item [15], which inserts a Significant Investor stream and a Significant Investor Extension stream in the Subclass 188 visa.

 

Subclause 188.312(5) provided that, if the primary applicant holds a Subclass 188 visa in the Extension stream, the applicant satisfies public interest criterion 4007.  Substituted subclause 188.312(5) replicates that subclause but refers to the 'Business Innovation Extension stream' instead of the 'Extension stream', and also adds the Significant Investor Extension stream.

 

The purpose of these amendments is to ensure that applicants seeking to satisfy the secondary criterion for a Subclass 188 visa must satisfy the same health-related public interest criterion as their family member who satisfied the primary criteria for the grant of a Subclass 188 visa.

 

Subclause 188.312(5) is consequential to the amendments at items [14] and [15], which renames the 'Extension stream' as the 'Business Innovation Extension stream' and insert a Significant Investor stream and a Significant Investor Extension stream in the Subclass 188 visa respectively.

 

Item [18] - Schedule 2, clause 188.511

 

This item substitutes clause 188.511 of Division 188.5 of Schedule 2 to the Principal Regulations.

 

Subclause 188.511 provided that, if the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Business Innovation stream or the Investor stream, that visa is a temporary visa permitting the holder to travel to, enter and remain in Australia for 4 years from the date of grant.  The substituted clause 188.511 replicates that subclause but adds the Significant Investor stream.

 

The purpose of this amendment is to provide that a Subclass 188 visa in the Significant Investor stream is in effect for four years from the date of grant.

 

This amendment is consequential to the amendments at item [15], which inserts a Significant Investor stream and a Significant Investor Extension stream into Part 188 of Schedule 2 to the Principal Regulations.

 

Item [19] - Schedule 2, clause 188.512

 

This item amends clause 188.512 of Schedule 2 to the Principal Regulations to substitute the words 'Extension stream' with 'Business Innovation Extension stream'.

 

This amendment is consequential to the amendments at item [14], which amends Subdivision 188.23 of Schedule 2 to rename the heading of 'Extension stream' as the 'Business Innovation Extension stream'.

 

Item [20] - Schedule 2, after clause 188.512

 

This item inserts clause 188.512A into Division 188.5 of Schedule 2 to the Principal Regulations.

 

Clause 188.512A provides that, if the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Significant Investor Extension stream, that visa is a temporary visa permitting the holder to travel to, enter and remain in Australia for:

 

 

The purpose of this amendment is to set out the duration of a Subclass 188 visa granted in the Significant Investor Extension stream.

 

This amendment complements the amendments at item [15], which inserts a Significant Investor stream and a Significant Investor Extension stream in Part 188 of Schedule 2 to the Principal Regulations.

 

Item [21] - Schedule 2, after clause 188.611

 

This item inserts clause 188.612 into Division 188.6 of Schedule 2 of the Principal Regulations.

 

Clause 188.612 provides that, if the applicant is granted a Subclass 188 visa in the Significant Investor stream or the Significant Investor Extension stream, condition 8557 must be imposed.

 

The purpose of this amendment is to impose condition 8557 on Subclass 188 visas granted in either the Significant Investor or the Significant Investor Extension stream.  Condition 8557 is inserted into the Principal Regulations at item [25] below and provides that the visa holder must hold the complying investment for the whole of the visa period.  The term 'visa period' is relevantly defined in subsection 5(1) of the Migration Act 1958 ('the Act') to mean a period beginning when the visa is granted and ending when it ceases to be in effect.

 

Item [22] - Schedule 2, clause 888.111, after note 4

 

This item inserts note 5 into clause 888.111 of Schedule 2 to the Principal Regulations.  New note 5 provides that the term 'complying investment' is defined in regulation 5.19B.

 

This amendment is consequential to the amendments in item [3], which inserts a regulation 5.19B.

 

Item [23] - Schedule 2, Division 888.2, first note

 

This item inserts a new note after the first note in Division 888.2 of Schedule 2 to the Principal Regulations.

 

The new note provides that, if an applicant applies for a Subclass 888 visa in the Significant Investor stream, the criteria in Subdivisions 888.21 and 888.24 are the primary criteria for the grant of the visa.

 

This amendment is consequential to the amendments at item [24], which inserts the Significant Investor stream into Part 888 of Schedule 2 to the Principal Regulations.

 

Item [24] - Schedule 2, after Subdivision 888.23

 

This item inserts Subdivision 888.24 into Division 888.2 of Schedule 2 to the Principal Regulations.

 

The purpose of subdivision 888.24 is to provide for the basis upon which visa applicants may be granted a Subclass 888 visa in the Significant Investor stream.

 

The note under Subdivision 888.24 provides that the criteria in that subdivision are only for applicants seeking to satisfy the primary criteria for the Subclass 888 visa in the Significant Investor stream.

 

Subclause 888.241(1) provides that, at the time of application:

 

 

Subclause 888.241(2) provides that the applicant has held a complying investment for the whole of the period during which the applicant has held the visa or visas mentioned in subclause 888.241(1).  The period in subclause 188.241(2) is not the 4 year period mentioned in subclause 888.241(1) but rather the entire period that the visas mentioned in subclause 888.241(1) were held.

 

Subclause 888.241(3) sets out an additional criterion which applies to any part of the investment that is, or was, a direct investment in an Australian proprietary company.  The additional criterion provides that:

 

 

The purpose of subclause 888.241(3) is to provide an alternate criterion for visa applicants who had made a direct investment in an Australian proprietary company as part of their complying investment.  To satisfy this alternate criterion the applicant must have, or had, an ownership interest in an Australian proprietary company and that company must have, or had, operated as a qualifying business.  This alternate criterion allows for circumstances where the Australian proprietary company was not a qualifying business only because the business genuinely did not succeed.

 

Subclause 888.241(4) provides that an applicant has given the Minister a completed approved form 1413 for each investment in a managed fund which the complying investment was based, which is consistent with the amendments at item [15].  A note under subclause 888.241(4) describes what is included in approved form 1413.

 

Approved form 1413 includes a declaration that the investments made by a trust or a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19B(2)(c).

 

Clause 888.242 provides that for the period during which the applicant has held the visa or visas mentioned in subclause 888.241(1), the applicant has been in Australia for at least a number of days worked out by multiplying the number of years in the period by 40 (treating a part of a year as one year).  The note under subclause 888.242 clarifies that it is not necessary for the applicant to have been in Australia for 40 days in each year in the period.

 

The purpose of clause 888.242 is to ensure that the visa holder spends time in Australia during the period they hold the Subclass 188 visa or visas in the Significant Investor stream or Significant Investor Extension stream.  It is intended that this time be at least 40 days per year (or part year) that the person (the applicant) holds or has held the Subclass 188 visa or visas referred to in subclause 888.241(1) although it will not be necessary for the visa holder to be in Australia for 40 days each year.  The total is calculated cumulatively.

 

Item [25] - Schedule 8, after clause 8549

 

This item inserts condition 8557 in Schedule 8 to the Principal Regulations.

 

Condition 8557 provides that the holder must hold the complying investment for the whole of the visa period.

 

The purpose of the amendment is to ensure that the visa holders maintain the threshold amount of complying investment invested (subject to market exposure), for as long as they hold the visa to which the condition attaches.  The term 'visa period' is relevantly defined in subsection 5(1) of the Act to mean a period beginning when the visa is granted and ending when it ceases to be in effect.

 

Item [26] - Schedule 13, Part 6 (second occurring)

 

This item renumbers the second reference to Part 6 in Schedule 13 of the Principal Regulations as Part 7.

 

The purpose of this amendment is to ensure consistent numbering of the provisions in Schedule 13 to the Principal Regulations and to correct a typographical error made in Schedule 7 to the Migration Legislation Amendment Regulation 2012 (No. 5).

 

Item [27] - Schedule 13, item 601 (second occurring)

 

This item renumbers the second reference to item 6 in Schedule 13 of the Principal Regulations as item 701.

 

The purpose of this amendment is to ensure consistent numbering of the provisions in Schedule 13 to the Principal Regulations and to correct a typographical error made in Schedule 7 to the Migration Legislation Amendment Regulation 2012 (No. 5).

 

Item [28] - Schedule 13, after Part 7

 

This item inserts Part 8 into Schedule 13 of the Principal Regulations.

 

New Part 8 provides that the amendments of these Principal Regulations made by Schedule 1 to the Migration Amendment Regulation 2012 (No. 7) apply in relation to an application for a visa made on or after 24 November 2012.

 

The purpose of the amendment is to set out to whom the amendments in this regulation applies.

 


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