EXPLANATORY
STATEMENT
Select
Legislative Instrument 2006 No. 123
Issued
by the Minister for Immigration
and
Multicultural Affairs
Subject - Migration Act
1958
Migration
Amendment Regulations 2006 (No. 2)
Subsection 504(1) of the Migration Act 1958 (the
Act) provides, in part, that the Governor-General may make regulations, not
inconsistent with the Act, prescribing all matters which by the Act are
required or permitted to be prescribed, or which are necessary or convenient to
be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the
provisions listed in Attachment A
The purpose
of the proposed Regulations is to amend the Migration Regulations 1994
(the Principal Regulations) to make changes necessary to ensure the intended
operation of immigration policy. These include changes to allow the grant of
visas to the interdependent partners of certain applicants, amend provisions
relating to particular visas, maintain special provisions relating to certain
Vietnamese non-citizens, and increase the maximum numbers members of the
Migration Review Tribunal and the Refugee Review Tribunal.
In
particular, the Regulations:
·
enable interdependent partners and dependent children of
interdependent partners of applicants seeking to satisfy the primary criteria
for a Business (Long Stay) visa to be eligible for grant of the visa as
secondary applicants;
·
require an application for a Distinguished Talent visa to be
accompanied by a completed nomination by an Australian citizen or permanent
resident or an Australian organisation;
·
prescribe a nil Visa Application Charge for Sponsored Business
Visitor (Short Stay) visa applications for applicants representing foreign
governments and certain international organisations;
·
enable Sponsored Business Visitor (Short Stay) visa holders to
travel to and enter Australia on more than one occasion;
·
provide that conditions preventing further stay on Sponsored
Business Visitor (Short Stay) visas may be imposed as a matter of discretion
rather than being mandatory;
·
introduce a definition of “senior manager” for the purpose of
grant of a State/Territory Sponsored Business Owner (Provisional) visa, to
clarify eligibility requirements;
·
introduce a provision whereby the usual annual turnover
requirement need not be met by certain applicants for a permanent Sponsored
Business Owner visa where an appropriate regional authority has determined that
exceptional circumstances exist for grant of a visa and the applicant resides
and operates a business in a specified regional area or a low population growth
metropolitan area;
·
continue to prescribe the People’s Republic of China (PRC) as a
“safe third country” in respect of Vietnamese refugees settled in PRC since
1979 and who arrived in Australia unlawfully after 1 January 1996, with the
effect that they cannot apply for a protection visa in Australia;
·
increase the amounts of time holders of Working Holiday and Work
and Holiday visas can work and study in Australia;
·
enable applicants in Australia for further Working Holiday visas
to apply for the grant of a Bridging E visa; and
·
increase the maximum number of members that may be appointed to
the Migration Review Tribunal, and the maximum number of Senior Members and
other members that may be appointed to the Refugee Review Tribunal.
Details of the Regulations are set
out in Attachment B.
The Act specifies no conditions that
need to be satisfied before the power to make the Regulations may be exercised.
The Regulations will be a
legislative instrument for the purposes of the Legislative Instruments Act
2003.
The Regulations commence on 1 July 2006. This commencement date is a consequence of various systems requirements
necessary to allow the implementation of the Regulations.
Transitional provisions clarify
which provisions apply to applicants whose applications are not finally
determined at the time the Regulations commence.
The Office of
Regulation Review in the Productivity Commission has been consulted and advises
that the Regulations are not likely to have a direct effect, or substantial
indirect effect, on business and are not likely to restrict competition.
The following external agencies and other bodies were
consulted in relation to the Regulations:
Schedule 4: Relevant State and Territory government
agencies were consulted, in particular the NSW
Department of State and Regional Development, the Victorian Department for
Victorian Communities, the Queensland Department of State Development, the West
Australian Small Business Development Corporation, the South Australian Department
of Premier and Cabinet, the Tasmanian Department of Economic Development, the
Northern Territory Department of Business, Industry and Resource Development,
and the Australian Capital Territory Chief Minister's Department.
Schedule 6: Stakeholders were consulted, in particular
the relevant Commonwealth and State/Territory Ministers for Education, Tourism,
Employment and Workplace Relations.
No other consultations were
conducted in relation to the other Schedules to these Regulations, as the
amendments were considered not to have relevant implications for any external
agencies or other bodies.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the
Act) provides, in part, that the Governor-General may make regulations, not
inconsistent with the Act, prescribing all matters which by the Act are
required or permitted to be prescribed, or which are necessary or convenient to
be prescribed for carrying out or giving effect to the Act. Subsection 5(1) of
the Act provides, amongst other things, that “prescribed” means prescribed by
the regulations.
In addition to subsection 504(1) of the Act the following
provisions may apply:
·
Subsection 31(3) of the Act, 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
sections 32, 36, 37 or 37A but not sections 33, 34, 35 or 38 of the Act);
·
Subsection 40(1) of the Act, which provides that the regulations
may provide that visas or visas of a specified class may only be granted in
specified circumstances;
·
Subsection 41(1) of the Act, which provides that the regulations
may provide that visas, or visas of a specified class, are subject to specified
conditions;
·
Subsection 41(2) of the Act, which provides that, without
limiting subsection 41(1), the regulations may provide that a visa, or visas of
a specified class, are subject to:
-
a condition that, despite anything else in the Act, the holder of the
visa will not, after entering Australia, be entitled to be granted a
substantive visa (other than a protection visa or a temporary visa of a
specified kind), while he or she remains in Australia; or
-
a condition imposing restrictions about the work that may be done in Australia
by the holder, which, without limiting the generality of this paragraph, may be
restrictions on doing: any work; work other than specified work; or work of a
specified kind;
·
Subsection 41(3) of the Act, which provides that, in addition to
any conditions specified under subsection 41(1), the Minister may specify that
a visa is subject to such conditions as are permitted by the regulations for
the purposes of this subsection;
·
Subsection 45B(1) of the Act provides that the regulations
prescribe the amount that is the amount of visa application charge, not
exceeding the visa application charge limit;
·
Subsection 45B(2) of the Act provides that the regulations may
prescribe that the amount in relation to an application may be nil;
·
Subsection 46(1)) of the Act, which provides that the regulations
may provide the circumstances where an application for a visa is valid;
·
Subsection 46(3) of the Act, which provides that the regulations
may prescribe criteria that must be satisfied for an application for a visa of
a specified class to be a valid application;
·
Section 73 of the Act, which provides that the regulations may
provide that the Minister may grant a bridging visa permitting the non-citizen
to remain in, or travel to, enter and remain in Australia:
-
during a specified period; or
-
until a specified event happens;
·
Subsection 91D(1) of the Act provides that the regulations may
prescribe a country as a “safe third country” in relation to a non-citizen or
in relation to a class of persons of which the non-citizen is a member, if the
non-citizen has a prescribed connection with the country;
·
Subsection 91D(2) of the Act provides that, without limiting
paragraph 91D(1)(b), the regulations may provide that a person has a prescribed
connection with a country if the person is or was present in the country at a
particular time or at any time during a particular period, or the person has a
right to enter and reside in the country (however that right arose or is
expressed);
·
Section 140A of the Act, which provides that the regulations may
prescribe the kind of visas to which Division 3A – sponsorship applies;
·
Section 140O of the Act prescribes the criteria for waiving a
sponsorship bar;
·
Paragraph 395(c) of the Act provides that the regulations may prescribe
the maximum number of members (other than Senior Members or the Principal
Member) that may be appointed to the Migration Review Tribunal; and
·
Subsection 458(2) of the Act provides that the regulations may prescribe
the maximum number of persons that can be appointed as Senior Members and other
members of the Refugee Review Tribunal.
ATTACHMENT
B
Details of the proposed Migration
Amendment Regulations 2006 (No. 2)
Regulation 1 – Name of
Regulations
This regulation provides that these
Regulations are the Migration Amendment Regulations 2006 (No. 2).
Regulation 2 – Commencement
This regulation provides that these
Regulations commence on 1 July 2006.
Regulation 3 – Amendment of
Migration Regulations 1994
This regulation provides that Schedules
1 to 7 to these Regulations amend the Migration Regulations 1994 (the
Principal Regulations).
Regulation 4
– Transitional
Subregulation 4(1) provides that the
amendments made by items [6] to [15] of Schedule 1 apply in relation to an
application for a visa made on or after 1 July 2006.
The Note explains that there are no transitional
arrangements for the amendments made by items [1] to [5] of Schedule 1.
Subregulation 4(2) provides that the
amendments made by Schedule 2 apply in relation to an application for a visa
made on or after 1 July 2006.
Subregulation 4(3) provides that the
amendment made by item [1] of Schedule 3 applies in relation to a visa
application made on or after 1 July 2006.
Subregulation 4(4) provides that the
amendments made by items [2] and [3] of Schedule 3 apply in relation to a visa
application:
-
made on or after 1 July 2006; or
-
made, but not finally determined (within the meaning of subsection 5(9)
of the Migration Act 1958), before 1 July 2006.
Subregulation 4(5) provides that the
amendments made by Schedule 4 apply in relation to an application for a visa
made on or after 1 July 2006.
Subregulation 4(6) provides that the
amendments made by Schedule 6 apply in relation to an application for a visa
made on or after 1 July 2006.
The Note explains that there are no
transitional arrangements for the amendments made by Schedules 5 and 7.
Schedule 1 – Amendments relating to interdependent
partners
Item [1] - Regulation 1.03, after definition of Industry
Minister
This item inserts a new definition, interdependent
partner, into regulation 1.03 in Part 1 of Division 1.2 of the Principal
Regulations.
The new definition provides that an interdependent
partner means a non-citizen who is in an interdependent relationship.
Interdependent relationship has the meaning given by regulation 1.09A.
Item [2] –Regulation 1.20B, definition of sponsored
person, subparagraph (a)(ii)
This item substitutes subparagraph (a)(ii) of the
definition of sponsored person in regulation 1.20B in Part 1 of Division
1.4A of the Principal Regulations with new subparagraph (a)(ii).
New subparagraph (a)(ii) provides that a sponsored person
means, in relation to an applicant for approval as a standard business sponsor,
a person who is a member of the family unit, or the interdependent partner or a
dependent child of the interdependent partner, of a person who is described in
subparagraph (a)(i). Subparagraph (a)(i) remains unchanged.
The effect of this amendment is to include the
interdependent partner and dependent children of the interdependent partner, in
addition to members of the family unit, of certain applicants seeking to
satisfy the primary criteria for grant of a Subclass 457 (Business (Long Stay))
visa, as persons who may be sponsored under the Temporary Business entry
sponsorship and nomination provisions.
Item [3] –Regulation 1.20B, definition of sponsored
person, subparagraph (b)(ii)
This item substitutes subparagraph (b)(ii) of the
definition of sponsored person in regulation 1.20B in Part 1 of Division
1.4A to the Principal Regulations with new subparagraph (b)(ii).
New subparagraph (b)(ii) provides that a sponsored person
means, in relation to a standard business sponsor, a person who is a member of
the family unit, or the interdependent partner or a dependent child of the
interdependent partner, of a person who is described in subparagraph (b)(i).
Subparagraph (b)(i) remains unchanged.
The effect of this amendment is to include the
interdependent partner and dependent children of the interdependent partner, in
addition to members of the family unit, of certain applicants seeking to
satisfy the primary criteria for grant of a Subclass 457 (Business (Long Stay))
visa, as persons who may be sponsored under the Temporary Business entry
sponsorship and nomination provisions.
Item [4] –Paragraph 1.20BA(c)
This item substitutes paragraph 1.20BA(c) in Part 1 of
Division 1.4A to the Principal Regulations with new paragraph 1.20BA(c).
New paragraph 1.20BA(c) provides that for section 140A of
the Migration Act 1958, Division 3A of Part 2 of the Migration Act
1958 applies to a Subclass 457 (Business (Long Stay)) visa granted to a
person who is a member of the family unit, or the interdependent partner or a
dependent child of the interdependent partner, of a person who has been granted
a Subclass 457 (Business (Long Stay)) visa on the basis that the requirements
of subclause 457.223(4) or (5) of Schedule 2 were met.
The effect of this amendment is to include the
interdependent partner and dependent children of the interdependent partner, in
addition to members of the family unit, of certain applicants seeking to
satisfy the primary criteria for grant of a Subclass 457 (Business (Long Stay))
visa, as persons who may be sponsored under the Temporary Business entry
sponsorship and nomination provisions.
Item [5] – Paragraph 1.20HC(1)(c)
This item substitutes paragraph 1.20HC(1)(c) in Part 1 of
Division 1.4A to the Principal Regulations with new paragraph 1.20HC(1)(c).
New paragraph 1.20HC(1)(c) prescribes for subsection
140O(1) of the Migration Act 1958, a Subclass 457 (Business (Long Stay))
visa granted to the person who is a member of the family unit, or the
interdependent partner or a interdependent child of the interdependent partner,
of a person who has been granted a Subclass 457 (Business (Long Stay)) visa on
the basis that the requirements of subclause 457.223(4) or (5) of Schedule 2
were met.
The effect of this amendment is to include the
interdependent partner and dependent children of the interdependent partner, in
addition to members of the family unit, of certain applicants for Subclass 457
(Business (Long Stay)) visas, as applicants in respect to whom a sponsorship
bar may be waived by the Minister.
Item [6] – Schedule 1, sub-subparagraph 1223A(2)(a)(vi)(B)
This item substitutes sub-subparagraph 1223A(2)(a)(vi)(B)
of Item 1223A (Temporary Business Entry (Class UC)) of Schedule 1 to the
Principal Regulations with new sub-subparagraph 1223A(2)(a)(vi)(B).
New sub-subparagraph 1223A(2)(a)(vi)(B) prescribes a nil
Visa Application Charge (VAC) in the case of an applicant who is applying for a
visa that will permit the applicant to remain in Australia for more than 3
months, and who is a member of the family unit, or an interdependent partner or
the dependent child of an interdependent partner, of an applicant for a
Subclass 457 (Business (Long Stay)) mentioned in subparagraph (v).
The effect of this amendment is to include interdependent
partners and dependent children of interdependent partners, in addition to
members of the family unit, as secondary applicants for whom a VAC of nil is
prescribed, where the primary applicant appears to be a person to whom certain
diplomatic privileges and immunities would be accorded under the relevant
legislation, and who is expected to be recommended by the Minister for Foreign
Affairs for the grant of the visa.
Item [7] – Schedule 1, subparagraph 1223A(3)(ae)(ii)
This item amends subparagraph 1223A(3)(ae)(ii) of Item
1223A (Temporary Business Entry (Class UC)) of Schedule 1 to the Principal
Regulations, by omitting the word “spouse” and substituting “spouse or
interdependent partner”.
The effect of this amendment is to allow applicants who are
the interdependent partners of certain holders of a Subclass 457 (Business
(Long Stay)) visa who have been conducting business in Australia in certain
circumstances to make an application in Australia, but not in immigration
clearance. This provision was previously restricted to the spouse of a holder
of a Subclass 457 visa.
Item [8] – Schedule 1, paragraph 1223A(3)(c)
This item substitutes paragraph 1223A(3)(c) of Item 1223A
(Temporary Business Entry (Class UC)) of Schedule 1 to the Principal
Regulations with new paragraph 1223A(3)(c).
New paragraph 1223A(3)(c) provides that if the applicant
seeks a visa that will permit the applicant to remain in Australia (whether or
not also a visa to travel to and enter Australia) for a period or periods of
more than 3 months and the applicant claims to
be a member of the family unit, or the interdependent partner, or a dependent
child of an interdependent partner, of a person who seeks to satisfy the
primary criteria (referred to as the “primary applicant”), the application may
be made at the same time and place, and combined with, an application by the
primary applicant or any other applicant who claims to be a member of the
family unit, the interdependent partner or a dependent child of the
interdependent partner of the primary applicant.
The effect of this amendment is to enable the
interdependent partner or dependent child of the interdependent partner, as well
as members of the family unit, of a primary applicant to make an application
for a Subclass 457 visa combined with the application of the primary applicant
or that of any other applicant who claims to be the member of the family unit, the
interdependent partner or a dependent child of the interdependent partner of
the primary applicant.
Item [9] - Schedule 1, subparagraph 1223A(3)(ca)(ii)
This item substitutes subparagraph 1223A(3)(ca)(ii) of
Item 1223A (Temporary Business Entry (Class UC)) of Schedule 1 to the Principal
Regulations with new subparagraph 1223A(3)(ca)(ii).
New subparagraph 1223A(3)(ca)(ii) provides that an
application by an applicant who seeks to satisfy the secondary criteria for the
grant of a Subclass 457 (Business (Long Stay)) visa and claims to be a member
of the family unit, or the interdependent partner, or a dependent child of an
interdependent partner, of an applicant who seeks to satisfy, or has satisfied,
the primary criteria on the basis of meeting the requirements of subclause
457.223(2), (3), (4) or (10) of Schedule 2, must be made in Australia but not
immigration clearance, or as an Internet application.
The effect of this amendment is that
applications by the interdependent partner or dependent child of an
interdependent partner, as well as applications by members of the family unit,
of certain primary applicants for a Subclass 457 (Business (Long Stay) may be
made in Australia (but not in immigration clearance) or by Internet.
Item [10] – Schedule 2, Division 457.2, Note
This item substitutes the Note
to Division 457.2 in Part 457 (Subclass 457 (Business (Long Stay)) of Schedule
2 to the Principal Regulations, with a new Note.
The new Note provides that
the primary criteria must be satisfied by at least one applicant. Other
applicants who are members of the family unit, or the interdependent partner or
dependent child of the interdependent partner, of the applicant who satisfies
the primary criteria need satisfy only the secondary criteria.
The purpose of this amendment is to
make it clear that the interdependent partner or dependent child of the
interdependent partner, as well as a member of the family unit, of the primary
applicant need only satisfy the secondary criteria.
Item [11] – Schedule 2, after clause 457.227
This item inserts new clause
457.227A in Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to the
Principal Regulations.
New clause 457.227A requires that
where the interdependent partner, or a dependent child of the interdependent
partner, of an applicant who seeks to satisfy the requirements of subclause
457.223(7A), is also an applicant for a Subclass 457 (Business (Long Stay))
visa, he or she must satisfy public interest criteria 4001, 4002, 4003, 4004,
4005, 4010, 4013, 4014, and if he or she has previously been in Australia,
special return criteria 5001 and 5002.
This amendment is consequential upon
the introduction by this Schedule of provisions that enable the interdependent
partner, or dependent child of the interdependent partner, of a primary
applicant for a Subclass 457 (Business (Long Stay)) visa who seeks to satisfy
the requirements of subclause 457.223(7A) (relating to certain applicants who
have been conducting businesses in Australia), to satisfy the secondary
criteria.
The effect of this amendment is that
the primary criteria cannot be satisfied unless the interdependent partner and
any dependent children of the interdependent partner included in the
application by the relevant primary applicant are able to satisfy the specified
public interest criteria and special return criteria. This provision mirrors
the current requirements in relation to a member of the family unit of a
primary applicant seeking to satisfy the same requirements.
Item [12] – Schedule 2, Clause 457.321
This item substitutes clause 457.321
of Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to the Principal
Regulations with new clause 457.321.
New clause 457.321 requires that at
the time of decision on an application by an applicant who is a member of the
family unit, or the interdependent partner or a dependent child of the
interdependent partner, of a primary applicant for a Subclass 457 visa, the
primary applicant must have satisfied the primary criteria and be the holder of
a Subclass 457 visa.
The effect of this amendment is to
enable the interdependent partner or dependent child of an interdependent
partner of a primary applicant to satisfy the secondary criteria for grant of a
Subclass 457 (Business (Long Stay)) visa, provided the primary applicant has
satisfied the primary criteria. This provision mirrors the existing provision
relating to members of the family unit of the primary applicant.
Item [13] – Schedule 2, clause 457.324A
This item substitutes clause
457.324A of Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to the
Principal Regulations with new clause 457.324A.
New clause 457.324A requires that
where the applicant is a member of the family unit, or the interdependent
partner, or a dependent child of the interdependent partner of an applicant who
satisfied the criterion in clause 457.223 on the basis of being sponsored by an
approved sponsor within the meaning of section 140D of the Migration Act
1958, the member of the family unit, or the interdependent partner or
dependent child of the interdependent partner, must be included in that
sponsorship.
The effect of this amendment is that
the interdependent partner or the dependent child of the interdependent partner
of the primary applicant may satisfy certain criteria for grant of a Subclass
457 (Business (Long Stay)) visa on the basis of being included in the
sponsorship on the basis of which the primary applicant satisfied the primary
criteria. This mirrors the current provisions relating to members of the
family unit.
Item [14] – Schedule 2, paragraph 457.325 (aa)
This item substitutes paragraph
457.325(aa) of Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to
the Principal Regulations with new paragraph 457.325(aa).
New paragraph 457.325(aa) requires that
an applicant who is a member of the family unit, or the interdependent partner
or a dependent child of the interdependent partner of an applicant who
satisfies the requirements of subclause 457.223(7A) (relating to certain
applicants who have been conducting businesses in Australia) must satisfy
public interest criteria 4005.
The effect of this amendment is that
an applicant for a Subclass 457 visa who is the interdependent partner, or the
dependent child of the interdependent partner, of a relevant primary applicant
must satisfy public interest criterion 4005 which relates to health
requirements. This mirrors the current requirements for secondary applicants
who are members of the family unit.
Item [15] – Schedule 2, paragraph 457.325(b)
This item substitutes paragraph
457.325(b) of Part 457 (Subclass 457 (Business (Long Stay)) of Schedule 2 to
the Principal Regulations with new paragraph 457.325(b).
Paragraph 457.325(b) provides that
except where a secondary applicant is a member of the family unit, or the
interdependent partner, or a dependent child of the interdependent partner, of a
primary applicant who meets the requirements of subclause 457.223(9) (relating
to primary applicants who are accorded certain privileges and immunities), the
applicant must satisfy public interest criterion 4006A relating to certain
health criteria.
The effect of this amendment is that
an applicant for a Subclass 457 visa who is the interdependent partner, or the
dependent child of the interdependent partner, of a relevant primary applicant,
other than a primary applicant who is accorded certain privileges and
immunities, must satisfy public interest criterion 4006A. This mirrors the
current requirements for secondary applicants who are members of the family
unit.
Schedule 2 – Amendments
relating to Distinguished Talent visas
Item [1] – Schedule 1, after paragraph 1112(3)(b)
This item inserts new paragraphs 1112(3)(c) and (d) in Item
1112 (Distinguished Talent (Migrant) (Class AL)) in Schedule 1 to the Principal
Regulations.
New paragraph 1112(3)(c) requires that if an applicant for a
Distinguished Talent (Migrant) (Class AL)) visa is seeking to meet the
requirements of subclause 124.211(2) in Part 124 of Schedule 2 to the Principal
Regulations, the application must be accompanied by a completed approved form
1000. Subclause 124.211(2) provides that the applicant has an internationally
recognised record of exceptional and outstanding achievement in a profession, a
sport, the arts or academia and research and is still prominent in the area and
would be an asset to the Australian community.
Approved form 1000 (Nomination for Distinguished Talent) must
be completed by an Australian citizen, an Australian permanent resident, an
eligible New Zealand citizen, or an Australian organisation having national
reputation relevant to the area of the applicant’s achievement, and must
testify to the applicant’s record of achievement. An application that is not
accompanied by a completed nomination, which is required to satisfy the criteria
for grant of a Subclass 124 (Distinguished Talent) visa, will not be valid.
New paragraph 1112(3)(d) requires that if an applicant for a
Distinguished Talent (Migrant) (Class AL) visa is seeking to meet the
requirements of subclause 124.211(4) in Part 124 of Schedule 2 to the Principal
Regulations, the Minister must have received advice from the Minister
responsible for an intelligence or security agency within the meaning of the Australian
Security Intelligence Organisation Act 1979, or the Director-General of
Security, that the applicant has provided specialised assistance to the
Australian Government in matters of security.
The effect of new paragraph 1112(3)(d) is that a person
seeking to satisfy subclause 124.211(4) will not be able to make a valid
application unless the Minister has received the relevant advice.
Item [2] – Schedule 1, after paragraph 1113(3)(c)
This item inserts new paragraphs
1113(3)(d) and (e) in Item 1113 (Distinguished Talent (Residence) (Class BX))
in Schedule 1 to the Principal Regulations.
New paragraph 1113(3)(d) requires that if an applicant for a
Distinguished Talent (Residence) (Class BX)) visa is seeking to meet the
requirements of subclause 858.212(2), in Part 858 of Schedule 2 to the
Principal Regulations, the application must be accompanied by a completed
approved form 1000. Subclause 858.212(2) provides that the applicant has an
internationally recognised record of exceptional and outstanding achievement in
a profession, a sport, the arts or academia and research and is still prominent
in the area and would be an asset to the Australian community.
Approved form 1000 (Nomination for Distinguished Talent)
must be completed by an Australian citizen, an Australian permanent resident,
an eligible New Zealand citizen, or an Australian organisation having national
reputation relevant to the area of the applicant’s achievement, and must
testify to the applicant’s record of achievement. An application that is not
accompanied by a completed nomination, which is required to satisfy the
criteria for grant of a Subclass 858 (Distinguished Talent) visa, will not be
valid.
New paragraph 1113(3)(e) requires that if an application for
a Distinguished Talent (Residence) (Class BX)) visa is seeking to meet the
requirements of subclause 858.212(4) in Part 858 of Schedule 2 to the Principal
Regulations, the Minister must have received advice from the Minister
responsible for an intelligence or security agency within the meaning of the Australian
Security Intelligence Organisation Act 1979, or the Director-General of
Security, that the applicant has provided specialised assistance to the
Australian Government in matters of security.
The effect of new paragraph 1113(3)(e) is that a person
seeking to satisfy subclause 858.212(4) will not be able to make a valid
application unless the Minister has received the relevant advice.
Item [3] – Schedule 2, paragraph 124.211(2)(e)
This item substitutes paragraph 124.211(2)(e) in Subclass
124 (Distinguished Talent) of Part 2 of the Principal Regulations, with new
paragraph 124.211(2)(e). This item also inserts a new Note after
paragraph 124.211(2)(e).
New paragraph 124.211(2)(e) requires, that in order to
satisfy the criteria at the time of application, an applicant for a Subclass
124 visa must produce a completed approved form 1000. The new Note
clarifies that an approved form 1000 requires the applicant’s record of
achievement (as mentioned in paragraph 124.211(2)(a)) to be testified to by an
Australian citizen, an Australian permanent resident, an eligible New Zealand
citizen, or an Australian organisation, having a national reputation in
relation to the relevant area of achievement.
The effect of this amendment is to require the applicant
to produce, at the time of application, a completed form 1000 testifying to the
applicant’s achievement and standing in the relevant area, from an Australian
citizen, an Australian permanent resident, an eligible New Zealand citizen, or
an Australian organisation, having a national reputation in relation to the area.
This amendment provides consistency with the requirements of new paragraph
1112(3)(c), inserted in Schedule 1 of the Principal Regulations by item [1] of
this Schedule, above.
Item [4] – Schedule 2, paragraph 858.212(2)(e)
This item substitutes paragraph 858.212(2)(e) in Subclass
858 (Distinguished Talent) of Schedule 2 to the Principal Regulations, with new
paragraph 858.212(2)(e). This item also inserts a new Note after
paragraph 858.212(2)(e).
New paragraph 858.212(2)(e) requires, that in order to satisfy
the criteria at the time of application, an applicant for a Subclass 858 visa
must produce a completed approved form 1000. The new Note clarifies
that an approved form 1000 requires the applicant’s record of achievement (as
mentioned in paragraph 858.212(2)(a)) to be testified to by an Australian
citizen, an Australian permanent resident, an eligible New Zealand citizen, or
an Australian organisation, having a national reputation in relation to the
relevant area of achievement.
The effect of this amendment is to require the applicant,
at the time of application, to produce a completed form 1000 testifying to the
applicant’s achievement and standing in the relevant area from an Australian
citizen, an Australian permanent resident, an eligible New Zealand citizen, or
an Australian organisation, having a national reputation in relation to the
area. This amendment provides consistency with the requirements of new
paragraph 1113(3)(d), inserted in Schedule 1 of the Principal Regulations by
item [2] of this Schedule, above
Schedule 3 – Amendments
relating to Sponsored Business Visitor (Short Stay) (Subclass 459) visas
Item [1] – Schedule 1, subitem 1217A(2)
This item substitutes subitem 1217A(2) in Item 1217A
(Sponsored (Visitor) (Class UL)) of Schedule 1 to the Principal Regulations
with new subitem 1217A(2). The new subitem 1217A(2) has two paragraphs.
New subparagraph 1217A(2)(a)(i)
provides that the first instalment of the Visa Application Charge (VAC) payable
on application for a Sponsored (Visitor) Class UL visa is, subject to
subparagraphs (ii), (iii) and (iv), $70.
New subparagraph 1217A(2)(a)(ii)
provides that the first instalment of the VAC is nil for an applicant who is
seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored
Business Visitor (Short Stay)) visa, and who appears to the Minister, on the
basis of the application, to be a person to whom privileges and immunities are,
or are expected to be accorded under the International Organisations
(Privileges and Immunities) Act 1963 or the Overseas Missions
(Privileges and Immunities Act) 1995, and is expected to be recommended by
the Minister for Foreign Affairs for the grant of the visa.
New subparagraph 1217A(2)(a)(iii)
provides that the first instalment of the VAC is nil for an applicant seeking
to satisfy the criteria for the grant of a Subclass 459 visa, in the course of
acting as a representative for a foreign government.
New subparagraph 1217A(2)(a)(iv)
provides that the instalment of the VAC is nil for an applicant who is the
spouse or dependent child of an applicant mentioned in subparagraph
1217A(2)(a)(ii) or (iii).
New paragraph 1217A(2)(b) continues
the provision of the previous paragraph 1217A(2)(b) that there is no second instalment
of the VAC payable by any applicant.
The effect of this amendment is to
exempt from payment of the first instalment of the VAC those applicants who are
entitled to diplomatic privileges and immunity or who act as representatives of
a foreign government, and the spouses and dependent children of such applicants.
Item [2] – Schedule 2, Division 459.5
This item substitutes Division 459.5 in Part 459
(Subclass 459 (Sponsored Business Visitor (Short Stay)) of Schedule 2 to the
Principal Regulations with new Division 459.5.
New Division 459.5 has one new clause 459.511, which
provides that a Subclass 459 ((Sponsored Business Visitor (Short Stay)) visa is
a temporary visa allowing the holder to travel to and enter Australia on one or
more occasions until a date specified by the Minister, and to remain in
Australia for a period, not longer than 3 months after the date of each entry,
specified by the Minister for the purpose.
The effect of this amendment is to
change the current provision which allows visa holders to travel to and enter Australia
on one occasion only.
The purpose of this amendment is to align
the conditions of the Subclass 459 more closely to the non-sponsored business
visitor visa Subclass 456.
Item [3] – Schedule 2, Division 459.6
This item substitutes
Division 459.6 in Part 459 (Subclass 459 (Sponsored Business Visitor (Short
Stay)) of Schedule 2 to the Principal Regulations with new Division 459.6.
New Division 459.6 has six new clauses 459.611,
459.612, 459.613, 459.613A, 459.614 and 459.615, which prescribe the conditions
which are imposed, and which may be imposed, on Subclass 459 (Sponsored Visitor
(Short Stay)) visas granted to applicants who satisfy the criteria for grant of
the visa.
The conditions are the same as the conditions
prescribed under the existing Division 459.6, except that conditions 8503 and
5531 are made discretionary conditions that may be imposed on visas granted to
all applicants, instead of, as under the existing regulations, being mandatorily
imposed by law.
Condition 8503 provides that the holder will
not, after entering Australia, be entitled to be granted a substantive visa, other than
a protection visa, while remaining in Australia.
Condition 8531 provides that the holder must
not remain in Australia after the end of the period of stay permitted by the visa.
The effect of
this amendment is to provide flexibility not to apply conditions 8503 and 8531
to Subclass 459 visas where it is appropriate not to do so in particular cases.
A visa without these conditions imposed will enable the holder to be granted
another substantive visa while in Australia and to
stay beyond the end of the visa period if they are granted a second visa, where
this is appropriate.
Schedule 4 – Amendments
relating to sponsored business owners
Item [1] – Schedule 2, Division 163.1, including the notes
This item substitutes Division 163.1
in Part 163 (Subclass 163 (State/Territory Sponsored Business Owner
(Provisional)) of Schedule 2 to the Principal Regulations with new Division
163.1.
New Division 163.1 contains one new
clause 163.111, which provides a definition of the term senior manager.
This definition is specific to Part 163.
Senior manager is
defined to mean a person who has appropriate formal qualifications obtained as
a result of at least three years full time study (or the part time equivalent),
or at least five years appropriate experience. The person must have been
employed for at least three additional years in the kind of work for which they
were trained or experienced, with a sound and continuous employment record for
three years out of the last five years immediately before applying, in a
position, or positions, in a qualifying business or businesses, which required
the person to make decisions about how the whole or a substantial part of the
activities of the business were to be managed, take responsibility for the day
to day running of the business or a part of the business, and, if appropriate
to the structure of the relevant business, have management responsibilities
over other functional managers. If the person’s occupation requires
registration or licensing under Australian law, the person must be registered
or licensed as required.
The purpose of the new definition is
to adjust and more fully reflect the requirements to be satisfied by a person
applying for the grant of a Subclass 163 (State/Territory Sponsored Business
Owner (Provisional)) visa on the grounds of being a senior manager. These
requirements are incorporated in the criteria in clause 163.212 by the
amendment made by item [2] of this Schedule. For further details, see the
notes on that item below.
Note 1 and Note 2
at the end of Division 163.1, relating to terms used in Part 163 that are
defined elsewhere, are re-inserted unchanged. The previous Note 3 is
omitted as it is no longer relevant following insertion of new clause
163.111.
Item [2] – Schedule 2, paragraph 163.212(b)
This item substitutes paragraph
163.212(b) in Part 163 (Subclass 163 (State/Territory Sponsored Business Owner
(Provisional)) of Schedule 2 to the Principal Regulations, with new paragraph
163.212(b).
New paragraph 163.212(b) provides
that an applicant for a Subclass 163 (Sponsored Business Owner (Provisional))
may satisfy a primary criterion by being a “senior manager”, as an alternative
to the requirement in existing paragraph 163.212(a) relating to having an
ownership interest in a specified business or businesses, which is unchanged.
The requirements to be met by a
“senior manager” are now contained in the new definition of the term, inserted
in Division 163.1 by item [1] of this Schedule. The new definition clarifies
the requirements to be met by a “senior manager”. In particular, the
definition clarifies what formal qualifications or experience are required, and
what is required for a ‘sound and continuous employment record in a senior
management role’. The meaning of these requirements was unclear in the previous
paragraph 163.212(b). The new definition also requires the applicant’s record
in high level management to have been obtained in at least three years of the
five years immediately preceding the application. This changes the previous
requirement that the record must have been over at least four years immediately
preceding the application.
Item [3] – Schedule 2, clause 892.213
This item substitutes
clause 892.213 in Part 892 (Subclass 892 (State/Territory Sponsored Business
Owner) of Schedule 2 to the Principal Regulations, with new clause 892.213.
New clause 892.213
provides that an applicant must meet the requirements of subclause 892.213(2)
or (3). Subclause 892.213(2) continues the requirement of the previous clause
892.213, that in the last 12 months immediately before the application is made,
the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD200, 000.
New subclause 892.213(3)
inserts an additional criterion, that can be satisfied as an alternative to
subclause 892.213(2) if the applicant meets at least two of the requirements in
existing paragraphs 892.212(a), (b) or (c), relating to the number of employees
and value of the applicant’s business and the value of the applicant’s assets, whether
the applicant resides in and operates a business in an area specified by the
Minister in an instrument in writing for this provision, and the appropriate
regional authority has determined that there are exceptional circumstances.
The effect of this
amendment is to provide for appropriate regional authorities to make a
determination that exceptional circumstances for grant of a visa exist in the
case of particular applicants. This will permit applicants to whom a
determination relates to satisfy the criterion, although unable to meet the
business turnover criterion, provided they reside in and operate a business in
a specified area. It is the policy intention that the areas to be specified
for this purpose will be regional areas or metropolitan areas having a low rate
of population growth.
Schedule 5 – Amendments
relating to safe third countries
Item [1] – Regulation 2.12A,
including the notes
This item substitutes regulation
2.12A in Part 2 of the Principal Regulations with new regulation 2.12A.
The purpose of this amendment is to
re-make regulation 2.12A on and from 1 July 2006, because in accordance with
subsection 91D(4) of the Migration Act 1958 the current regulation 2.12A
ceases to be in force on 30 June 2006. Regulation 2.12A is re-made in
essentially the same form as the current regulation 2.12A.
New subregulation 2.12A(1)
prescribes, for paragraph 91D(1)(a) of the Migration Act 1958, the
People’s Republic of China (PRC) as a safe third country in relation to certain
Vietnamese refugees settled in PRC, and their close relatives or dependents,
who are covered by the agreement between Australia and PRC (see the notes on
new subregulation 2.12A(3), below, for further details concerning the
agreement), and who entered Australia without lawful authority on or after 1
January 1996.
New subregulation 2.12A(2) provides
that, for paragraph 91D(1)(b) of the Migration Act 1958, a person
mentioned in new subregulation 2.12A(1) has a prescribed connection with PRC if
the person, or a parent of the person, resided in the PRC at any time before
the person entered Australia.
New paragraph 2.12A(3)(a) provides
that the term “agreement between Australia and PRC” means the agreement
constituted by the Memorandum of Understanding (MOU) set out in Schedule 11 to
the Principal Regulations, together with the exchange of letters between
representatives of Australia and PRC dated 17 March 2006 and 20 March 2006, the
text of which is set out in Schedule 12 to the Principal Regulations. The MOU
was signed by PRC and Australia on 25 January 1995. The MOU covers Vietnamese
refugees who were settled in PRC since 1979 and provided with effective
protection and assistance by the PRC government. The effect of the letters of 17 March 2006 and 20 March 2006 is to confirm that the MOU continues in force. The text
of these letters is inserted in Schedule 12 to the Principal Regulations by item
[2] of this Schedule, below.
New paragraph 2.12A(3)(b) provides
that the use of the word Vietnamese in this context is a reference to
nationality or country of origin, and is not an ethnic description.
The notes to new regulation 2.12A
mirror and update the notes to the current regulation 2.12A. Note 1
explains that the term PRC is defined in regulation 1.03. Note 2
explains that this new regulation 2,12A ceases to be in force at the end of 30 June 2008, by operation of subsection 91D(4) of the Migration Act 1958.
The effect of continuing regulation 2.12A in force is
that non-citizens covered by the regulation and having the prescribed
connection with PRC are prevented by operation of section 91E of the Migration
Act 1958 from making a valid application for a protection visa in Australia.
Item [2] – Schedule 12
This item substitutes the entirety of Schedule 12 to the
Principal Regulations with new Schedule 12.
New Schedule 12 contains
the text of the letters exchanged between representatives of Australia and the People’s Republic of China (PRC) continuing the Memorandum of
Understanding between Australia and PRC in relation to Vietnamese refugees the
subject of that Memorandum of Understanding. Part 1 of new Schedule 12
contains the letter dated 17 March
2006 from the representative of Australia to the representative of PRC. Part 2 of new Schedule 12 contains the
letter dated 20 March 2006 from the representative of PRC to the
representative of Australia. These letters replace the previous letters
dated 15 April 2004 and 16 April 2004, respectively.
Schedule 6 – Amendments
relating to Working Holiday (Subclass 417) and Work
and Holiday (Subclass 462) visas
Item [1] – Schedule 1, subitem 1305(1)
This item amends subitem 1305(1) of Schedule 1 to the
Principal Regulations by inserting references to forms 1150 and 1150E
(Internet).
The effect of this amendment is to allow applicants in Australia
who make a valid application for a further subclass 417 (Working Holiday) visa
on forms 1150 and 1150E to also apply for the grant of a Bridging E (Class WE)
visa.
Item [2] – Schedule 2, sub-subparagraph 010.211(4)(a)(i)(B)
This item amends sub-subparagraph 010.211(4)(a)(i)(B) of
Schedule 2 to the Principal Regulations by inserting a reference to new
condition 8547. New condition 8547 is inserted in Schedule 8 to the Principal
Regulations by item [15] of this Schedule, below.
The effect of sub-subparagraph 010.211(4)(a)(i)(B) as
amended is to provide that an applicant for a Bridging A visa is able to
satisfy a criterion for grant of that visa if at the time of application the
applicant holds a Bridging A visa subject to specified conditions (including
new condition 8547) and meets certain other requirements.
Item [3] – Schedule 2, subclause 010.611(4)
This item amends subclause 010.611(4) of Schedule 2 to
the Principal Regulations by inserting a reference to new condition 8547. New
condition 8547 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of subclause 010.611(4), as amended, is to
provide that new condition 8547 is imposed on a Bridging A visa granted to a
person who satisfies the primary criteria, a substantive visa held by the
applicant was subject to condition 8547 or if the last Bridging A or Bridging B
visa held by the applicant was subject to condition 8547.
Item [4] – Schedule 2, subclause 020.611(3)
This item amends subclause 020.611(3) of Schedule 2 to
the Principal Regulations by inserting a reference to new condition 8547. New
condition 8547 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of subclause 020.611(3), as amended, is to provide
that condition 8547 is imposed on a Bridging B visa granted to a person who
satisfies the primary criteria, if condition 8547 applied to the bridging visa
held by the applicant at the time of application.
Item [5] – Schedule 2, clause 050.611
This item amends clause 050.611 of Schedule 2 to the
Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of clause 050.611, as amended, is to provide
that condition 8548 is imposed on a Bridging General visa granted to a person,
if condition 8548 applied to a substantive visa held by the applicant or
applied to the last Bridging E visa held by the applicant.
Item [6] – Schedule 2, clause 050.611A
This item amends clause 050.611A of Schedule 2 to the
Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of clause 050.611A, as amended, is to provide
that condition 8548 may be imposed on a Bridging General visa granted to a
person who formerly held a Bridging General visa and who was interviewed by an
authorised officer before the visa was granted.
Item [7] – Schedule 2, paragraph 050.611B(b)
This item amends paragraph 050.611B(b) of Schedule 2 to
the Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of paragraph 050.611B(b), a amended, is to
provide that condition 8548 may be imposed on a Bridging General visa granted
to an unlawful non-citizen to whom subclause 050.222(3) applies.
Item [8] – Schedule 2, clause 050.612
This item amends clause 050.612 of Schedule 2 to the
Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of clause 050.612, as amended, is to provide
that condition 8548 is imposed on a Bridging General visa granted by operation
of section 75 of the Migration Act 1958. Section 75 provides that, if
an eligible non-citizen who is in immigration detention makes an application
for a bridging visa of a prescribed class and the Minister fails to make a decision
within the prescribed period to grant or refuse to grant the bridging visa, the
non-citizen is taken to have been granted a bridging visa of the prescribed
class on prescribed conditions (if any) at the end of that period.
Item [9] – Schedule 2, subclause 050.612A(3)
This item amends subclause 050.612A(3) of Schedule 2 to
the Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of subclause 050.612A(3), as amended, is to
provide that condition 8548 may be imposed on a Bridging General visa granted
to a person who satisfies certain specified criteria at the time of application.
Item [10] – Schedule 2, clause 050.613
This item amends clause 050.613 of Schedule 2 to the
Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of clause 050.613, as amended, is to provide
that condition 8548 may be imposed on a Bridging General visa granted to a
person who meets the requirements of subclause 050.212(6A) or (8).
Item [11] – Schedule 2, subclause 050.613A(2)
This item amends subclause 050.613A(2) of Schedule 2 to
the Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of subclause 050.613A(2), as amended, is to
provide that condition 8548 may be imposed on a Bridging General visa granted
to certain applicants for a Protection visa.
Item [12] – Schedule 2, clause 050.614
This item amends clause 050.614 of Schedule 2 to the
Principal Regulations by inserting a reference to new condition 8548. New
condition 8548 is inserted in Schedule 8 to the Principal Regulations by item
[15] of this Schedule, below.
The effect of clause 050.614, as amended, is to provide
that condition 8548 may be imposed on a Bridging General visa granted to an
applicant who is not covered by any other clause in Division 050.6.
Item [13] – Schedule 2, clause 417.611
This item amends clause 417.611 of Schedule 2 to the
Principal Regulations by omitting references to conditions 8108 and 8201 and
inserting references to new conditions 8547 and 8548. New conditions 8547 and
8548 are inserted in Schedule 8 to the Principal Regulations by item [15] of
this Schedule, below.
The effect of clause 417.611, as amended, is to provide
that conditions 8547 and 8548 (and not conditions 8108 and 8201) are imposed on
a subclass 417 (Working Holiday) visa granted to an applicant who satisfies the
criteria.
Item [14] – Schedule 2, clause 462.611
This item amends clause 462.611 of Schedule 2 to the
Principal Regulations by omitting references to conditions 8108 and 8201 and
inserting references to new conditions 8547 and 8548. New conditions 8547 and
8548 are inserted in Schedule 8 to the Principal Regulations by item [15] of
this Schedule, below.
The effect of clause 462.611, as amended, is to provide
that conditions 8547 and 8548 (and not conditions 8108 and 8201) are imposed on
a subclass 462 (Work and Holiday) visa granted to an applicant who satisfies
the criteria.
Item [15] – Schedule 8, after clause 8546
This item inserts two new conditions in Schedule 8 (Visa
Conditions) to the Principal Regulations.
New condition 8547 requires that the holder of the
visa must not be employed by any one employer for more than 6 months, without
the prior written permission of the Secretary.
New condition 8548 requires that the holder of the
visa must not engage in any studies or training in Australia for more than 4
months.
These two new conditions are imposed on subclass 417
(Working Holiday) and subclass 462 (Work and Holiday) visas granted
to applicants who satisfies the primary criteria by items [13] and [14] of this
Schedule, above. The effect of these conditions is to increase the time
holders of Subclass 417 and 462 visas may be employed by one employer in Australia,
and to increase the time that holders of these visas may engage in studies or
training in Australia.
Schedule 7 – Amendments
relating to the prescribed numbers of MRT and RRT members
Item [1] – Subregulation 4.22(2)
This item amends subregulation
4.22(2) of the Principal Regulations to replace the number “90” with the number
“110”.
The effect of this
amendment is that the prescribed maximum number of members (other than the
Principal or Senior Members) that may be appointed to the Migration Review
Tribunal in accordance with paragraph 395(c) of the Migration Act 1958
is increased from 90 to 110.
The purpose of this
amendment is to allow additional members to be appointed to the Migration
Review Tribunal to cope with increased workloads.
Item [2] – Subregulation 4.29
This item amends
regulation 4.29 of the Principal Regulations to replace the number “100” with
the number “120”.
The effect of this
amendment is that the prescribed maximum number of Senior Members and Members
that may be appointed to the Refuge Review Tribunal in accordance with
subsection 458(2) of the Migration Act 1958 is increased from 100 to
120.
The purpose of this amendment is to allow additional members
to be appointed to the Refugee Review Tribunal to cope with increased workloads.