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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment (Sponsorship Measures) Bill
2003
No. ,
2003
(Immigration and Multicultural and Indigenous
Affairs)
A Bill for an Act to amend the
Migration Act 1958, and for related purposes
Contents
Migration Act
1958 3
Migration Act
1958 18
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment
(Sponsorship Measures) Act 2003.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 5(1)
Insert:
approved sponsor, in relation to a visa of a kind (however
described) to which Division 3A of Part 2 applies, has the meaning
given by section 140D.
2 After Division 3 of
Part 2
Insert:
This Division applies to visas of a prescribed kind (however
described).
(1) The regulations may provide that sponsorship by an approved sponsor is
a criterion for a visa of a prescribed kind (however described).
(2) A criterion prescribed under subsection (1) is in addition to any
other criteria for the visa that:
(a) may be prescribed under any other provision of this or any other Act;
or
(b) are set out in this or any other Act.
(1) The regulations may provide that it is a criterion for a valid
application for a visa of a prescribed kind (however described) that the
applicant is sponsored by an approved sponsor.
(2) The regulations may provide that it is a criterion for a valid
application for a visa of a prescribed kind (however described) that the
applicant’s proposed sponsor has applied to be an approved sponsor at, or
before, the time the application for the visa is made.
(3) A criterion prescribed under subsection (1) or (2) is in addition
to any other criteria for a valid application for the visa that:
(a) may be prescribed under any other provision of this or any other Act;
or
(b) are set out in this or any other Act.
A person is an approved sponsor of another person for a
visa at a particular time if:
(a) the first person has consented in writing to sponsor the second person
for the visa and that consent has not been withdrawn by notice in writing to the
Minister; and
(b) the first person has been approved by the Minister before that time as
a sponsor of the second person for the visa, whether the second person is named
in the approval or otherwise described; and
(c) the approval has not been cancelled by the Minister before that time;
and
(d) a bar of a kind mentioned in paragraph 140L(c) or (d) that would
affect the sponsorship of the second person is not in force at that time;
and
(e) the terms on which the sponsorship was approved are satisfied at that
time.
(1) The Minister must approve a person as a sponsor if prescribed criteria
are satisfied.
(2) Different criteria may be prescribed for different kinds of visa
(however described).
(1) The regulations may establish a process for the Minister to approve a
person as a sponsor.
(2) Different processes may be prescribed for different kinds of visa
(however described).
(1) An approval as a sponsor may be on terms specified in the
approval.
(2) The terms must be of a kind prescribed by the regulations.
Note: The following are examples of the kinds of terms that
might be set out in the regulations:
(a) the number of people whom the approved sponsor may
sponsor under the approval;
(b) the duration of the approval.
(3) Different kinds of terms may be prescribed for different kinds of visa
(however described).
(1) The regulations may require an applicant for approval as a sponsor of
a person for a visa to make prescribed undertakings.
Note: The following are examples of the kinds of
undertakings that might be set out in the regulations:
(a) to pay debts for medical or hospital treatment incurred
by a visa holder sponsored by the sponsor;
(b) to pay to the Commonwealth the costs of locating,
detaining and removing from Australia a visa holder sponsored by the
sponsor;
(c) to pay the costs of the departure from Australia of a
visa holder sponsored by the sponsor;
(d) to comply with the Department’s requirements to
provide information to the Department;
(e) to notify the Department of changes in the circumstances
of the sponsor or of a visa holder sponsored by the sponsor;
(f) to cooperate with the Department’s monitoring of
the sponsor or of a visa holder sponsored by the sponsor.
(2) The undertakings only have effect if the applicant consents in writing
to sponsor that person. The applicant’s consent may be given either at the
time the application for approval is made, or at a later date.
(3) The undertakings do not have effect until the visa is
granted.
(4) Different undertakings may be prescribed for different kinds of visa
(however described).
(1) Without limiting the generality of subsection 140H(1), the regulations
may prescribe an undertaking to pay to the Commonwealth:
(a) an amount of a kind prescribed in the regulations; or
(b) an amount in relation to the costs of the Commonwealth worked out in
accordance with a method prescribed by reference to a determination by the
Minister.
(2) The Minister may make a determination for the purposes of
paragraph (1)(b) by notice in the Gazette.
(3) An undertaking to pay an amount to the Commonwealth is not enforceable
against the person who made it to the extent that the amount which the person
has undertaken to pay exceeds the costs of the Commonwealth in relation to which
the undertaking is made.
(1) This section applies if:
(a) an approved sponsor of a person for a temporary visa breaches an
undertaking; or
(b) a person who is no longer an approved sponsor of a person for a
temporary visa, but remains bound by an undertaking, breaches the
undertaking.
(2) The regulations may prescribe:
(a) circumstances in which the Minister may take one or more of the
actions mentioned in section 140L (cancelling or barring approval as a
sponsor) as a result of the breach of the undertaking; and
(b) the criteria to be taken into account by the Minister in determining
what action to take under that section.
(3) The regulations may prescribe circumstances in which the Minister must
take one or more of the actions mentioned in section 140L (cancelling or
barring approval as a sponsor) as a result of the breach of the
undertaking.
(4) Different circumstances and different criteria may be prescribed for
different kinds of temporary visa (however described).
(5) This section does not deal with the cancellation of approval as a
business sponsor (as defined in section 137A).
Note: The cancellation of that kind of approval is dealt
with by Subdivision GA of Division 3.
(1) The regulations may prescribe:
(a) other circumstances in which the Minister may take one or more of the
actions mentioned in section 140L (cancelling or barring approval as a
sponsor); and
(b) the criteria to be taken into account by the Minister in determining
what action to take under that section.
(2) The regulations may prescribe other circumstances in which the
Minister must take one or more of the actions mentioned in section 140L
(cancelling or barring approval as a sponsor).
(3) No action is to be taken in relation to a person under regulations
made under this section unless the person is:
(a) an approved sponsor of a person for a temporary visa; or
(b) a former approved sponsor of a person for a temporary visa.
(4) Different circumstances and different criteria may be prescribed for
different kinds of temporary visa (however described).
(5) This section does not deal with the cancellation of approval as a
business sponsor (as defined in section 137A).
Note: The cancellation of that kind of approval is dealt
with by Subdivision GA of Division 3.
The actions the Minister may (or must) take under section 140J or
140K in relation to a person (the sponsor) are:
(a) cancelling the approval of the sponsor for specified kinds of
temporary visas (however described);
(b) cancelling the approval of the sponsor for all temporary
visas;
(c) barring the sponsor, for a specified period, from sponsoring more
people under the terms of one or more existing specified approvals for temporary
visas;
(d) barring the sponsor, for a specified period, from sponsoring more
people under the terms of all existing approvals for temporary visas;
(e) barring the sponsor, for a specified period, from making future
applications for approval as a sponsor for specified kinds of temporary visa
(however described) for which sponsorship is a criterion;
(f) barring the sponsor, for a specified period, from making future
applications for approval as a sponsor for all temporary visas for which
sponsorship is a criterion;
(g) barring the sponsor, for a specified period, from nominating a person
or activity in relation to a temporary visa where the sponsor would otherwise be
entitled to make the nomination under the regulations.
Nothing in section 140J or 140K affects the right to require or take
security under section 269, or the right to enforce such a
security.
(1) The regulations may establish a process for the Minister to cancel the
approval of a person as a sponsor under section 140J or 140K.
(2) The regulations may establish a process for the Minister to place a
bar on a person under section 140J or 140K.
(3) Different processes may be prescribed for different kinds of temporary
visa (however described).
(1) This section applies to temporary visas of a prescribed kind (however
described).
(2) The Minister may, in prescribed circumstances, waive a bar placed on a
person under section 140J or 140K in relation to a visa to which this
section applies.
(3) The regulations may prescribe the criteria to be taken into account by
the Minister in determining whether to waive the bar.
(4) Different circumstances and different criteria may be prescribed for
different kinds of temporary visa (however described).
(1) The regulations may establish a process for the Minister to waive a
bar placed on a person under section 140J or 140K.
(2) Different processes may be prescribed for different kinds of temporary
visa (however described).
(1) The regulations may prescribe the circumstances in which, and for how
long, an undertaking arising out of the sponsorship of a particular temporary
visa holder remains enforceable against the sponsor concerned if:
(a) the visa holder ceases to hold the visa for which he or she was
sponsored; or
(b) the sponsor ceases to be an approved sponsor of the visa holder for
the visa (whether because the approval is cancelled or for any other
reason).
(2) Different circumstances and periods may be prescribed for different
kinds of temporary visa (however described).
(1) This section applies if:
(a) an approved sponsor for a temporary visa is bound by an undertaking to
pay debts of another person (the primary debtor) that are of a
kind specified in the undertaking; or
(b) a person who is no longer an approved sponsor for a temporary visa
remains bound by an undertaking to pay debts of another person (the
primary debtor) that are of a kind specified in the
undertaking.
(2) The person bound by the undertaking is jointly and severally liable to
pay the debts with the primary debtor.
(3) Without limiting any other provision of this Act, debts payable to a
person under the undertaking may be recovered by the person as a debt due to the
person in a court of competent jurisdiction.
(1) This section does not apply to a debt dealt with in
section 140R.
(2) Subject to subsection (1), this section applies if:
(a) an approved sponsor for a temporary visa is bound by an undertaking to
pay an amount of a kind specified in the undertaking; or
(b) a person who is no longer an approved sponsor for a temporary visa
remains bound by an undertaking to pay an amount of a kind specified in the
undertaking.
(3) Without limiting any other provision of this Act, amounts payable to a
person under the undertaking may be recovered by the person as a debt due to the
person in a court of competent jurisdiction.
(1) Where a debt, or other amount, that a person has undertaken to pay to
the Commonwealth becomes payable, the Minister may issue a notice in writing
stating the amount of the debt or other amount.
(2) In any proceedings a notice under this section is prima facie evidence
that the amount of the debt or other amount is that stated in the
notice.
Any liability created under this Division is in addition to any liability
created under:
(a) this or any other Act; or
(b) regulations made under this or any other Act.
(1) The Minister may disclose to an approved sponsor or former approved
sponsor personal information of a prescribed kind about a visa holder or former
visa holder sponsored.
(2) The regulations may prescribe circumstances in which the Minister may
disclose the personal information.
(3) The regulations may prescribe circumstances in which the approved
sponsor, or former approved sponsor, may use or disclose personal information
disclosed under subsection (1).
(4) If the Minister discloses personal information about a visa holder or
former visa holder under subsection (1), the Minister must notify him or
her in writing of the disclosure and of the details of the personal information
disclosed.
(5) In this section:
personal information has the same meaning as in the
Privacy Act 1988.
(1) Regulations made for the purposes of this Division do not limit the
power to make regulations under any other provision of this or any other
Act.
(2) To avoid doubt, nothing in this Division is intended to
affect:
(a) regulations in force before or after the commencement of this Division
that were or are made under any other provision of this or any other Act;
or
(b) anything done under those regulations.
(3) Nothing in paragraph (2)(a) affects the power to amend or repeal
regulations mentioned in that paragraph.
Subdivision B, and regulations made under it, apply to a partnership as
if it were a person, but with the changes set out in sections 140Y to
140ZB.
(1) Subject to section 140ZA, a sponsorship obligation that would
otherwise be imposed on a partnership is instead imposed on each person who is a
partner:
(a) where the obligation arises before the sponsorship is
approved—at the time the obligation arises; or
(b) where the obligation arises at any other time—at the time the
sponsorship is approved.
(2) Subject to section 140ZA, a sponsorship right that would
otherwise be exercisable by a partnership is instead a right exercisable by each
person who is a partner:
(a) where the right arises before the sponsorship is approved—at the
time the right arises; or
(b) where the right arises at any other time—at the time the
sponsorship is approved.
(3) Subject to sections 140Z and 140ZA, the following persons are
jointly and severally liable to pay an amount that would otherwise be payable by
a partnership in relation to sponsorship or as a result of
sponsorship:
(a) where the liability arises before the sponsorship is
approved—each person who is a partner at the time the obligation
arises;
(b) where the liability arises at any other time—each person who is
a partner at the time the sponsorship is approved.
(1) If a person becomes a partner in a partnership after it is approved as
a sponsor, the new partner may elect to accept each sponsorship obligation
that:
(a) would, but for subsection 140Y(1) or any previous application of this
section, be imposed on the partnership; and
(b) arises after the new partner makes the election.
(2) If the new partner accepts an obligation:
(a) the obligation is imposed on the new partner instead of on the
partnership; and
(b) the obligation is imposed on the new partner regardless of whether it
is also imposed on any other partner or retired partner.
(3) If:
(a) a sponsorship right would, but for subsection 140Y(2) or any previous
application of this section, be exercisable by a partnership; and
(b) the right arises after the new partner makes an election under
subsection (1) and does not arise because of a sponsorship obligation that
existed before the election was made;
the right is:
(c) exercisable by the new partner instead of by the partnership;
and
(d) exercisable by the new partner regardless of whether it is also
exercisable by any other partner or retired partner.
(4) If:
(a) a new partner accepts a sponsorship obligation by election under
subsection (1); and
(b) a liability to pay an amount arises from the obligation;
then the new partner is jointly and severally liable to pay the amount
together with:
(c) any other partner on whom the liability is also imposed under this
section or section 140Y; and
(d) any retired partner who remains liable for the amount under
section 140ZA.
(1) If a partner leaves a partnership after it is approved as a sponsor,
then, despite section 140Y, the regulations may prescribe:
(a) the circumstances in which, and for how long, a sponsorship obligation
remains enforceable against the retiring partner; and
(b) the circumstances in which, and for how long, a sponsorship right is
exercisable by the retiring partner; and
(c) which debts remain payable by the retiring partner.
(2) Different matters may be prescribed for different kinds of visa
(however described).
(1) A sponsorship obligation may be discharged by any of the partners in a
partnership on whom the obligation is imposed under this Subdivision.
(2) A sponsorship right exercised by one of the partners in a partnership
is taken to have been exercised on behalf of all of the partners who are
entitled to exercise the right under this Subdivision.
Subdivision B, and regulations made under it, apply to an unincorporated
association as if it were a person, but with the changes set out in
sections 140ZD to 140ZG.
(1) Subject to section 140ZF, a sponsorship obligation that would
otherwise be imposed on an unincorporated association is instead imposed on each
person who is a member of the association’s committee of
management:
(a) where the obligation arises before the sponsorship is
approved—at the time the obligation arises; or
(b) where the obligation arises at any other time—at the time the
sponsorship is approved.
(2) Subject to section 140ZF, a sponsorship right that would
otherwise be exercisable by an unincorporated association is instead a right
exercisable by each person who is a member of the association’s committee
of management:
(a) where the right arises before the sponsorship is approved—at the
time the right arises; or
(b) where the right arises at any other time—at the time the
sponsorship is approved.
(3) Subject to sections 140ZE and 140ZF, the following persons are
jointly and severally liable to pay an amount that would otherwise be payable by
an unincorporated association in relation to sponsorship or as a result of
sponsorship:
(a) where the liability arises before the sponsorship is
approved—each person who is a member of the association’s committee
of management at the time the obligation arises;
(b) where the liability arises at any other time—each person who is
a member of the association’s committee of management at the time the
sponsorship is approved.
(1) If a person becomes a member of the committee of management of an
unincorporated association after it is approved as a sponsor, the new member may
elect to accept each sponsorship obligation that:
(a) would, but for subsection 140ZD(1) or any previous application of this
section, be imposed on the association; and
(b) arises after the new member makes the election.
(2) If the new member accepts an obligation:
(a) the obligation is imposed on the new member instead of on the
association’s committee of management; and
(b) the obligation is imposed on the new member regardless of whether it
is also imposed on any other member or former member.
(3) If:
(a) a sponsorship right would, but for subsection 140ZD(2) or any previous
application of this section, be exercisable by an unincorporated association;
and
(b) the right arises after the new member makes an election under
subsection (1) and does not arise because of a sponsorship obligation that
existed before the election was made;
the right is:
(c) exercisable by the new member instead of by the association’s
committee of management; and
(d) exercisable by the new member regardless of whether it is also
exercisable by any other member or former member.
(4) If:
(a) a new member of the committee of management of an unincorporated
association accepts a sponsorship obligation by election under
subsection (1); and
(b) a liability to pay an amount arises from the obligation;
then the new member is jointly and severally liable to pay the amount
together with:
(c) any other member on whom the liability is also imposed under this
section or section 140ZD; and
(d) any former member who remains liable for the amount under
section 140ZF.
(1) If a member of the committee of management of an unincorporated
association leaves the committee after the association is approved as a sponsor,
then, despite section 140ZD, the regulations may prescribe:
(a) the circumstances in which, and for how long, a sponsorship obligation
remains enforceable against the former member; and
(b) the circumstances in which, and for how long, a sponsorship right is
exercisable by the former member; and
(c) which debts remain payable by the former member.
(2) Different matters may be prescribed for different kinds of visa
(however described).
(1) A sponsorship obligation may be discharged by any of the members of
the committee of management of an unincorporated association on whom the
obligation is imposed under this Subdivision.
(2) A sponsorship right exercised by one of the members of the committee
of management of an unincorporated association is taken to have been exercised
on behalf of all of the members who are entitled to exercise the right under
this Subdivision.
In this Subdivision:
committee of management of an unincorporated association
means a body (however described) that governs, manages or conducts the affairs
of the association.
sponsorship obligation means an obligation in relation to
sponsorship or as a result of sponsorship.
sponsorship right means a right in relation to sponsorship or
as a result of sponsorship.
1 At the end of subsection
338(2)
Add:
; and (d) where it is a criterion for the grant of the visa that the
non-citizen is sponsored by an approved sponsor, and the visa is a temporary
visa of a kind (however described) prescribed for the purposes of this
paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the
application to review the decision to refuse to grant the visa is made;
or
(ii) an application for review of a decision not to approve the sponsor
has been made, but, at the time the application to review the decision to refuse
to grant the visa is made, review of the sponsorship decision is
pending.
2 Application
The amendment made by item 1 applies to decisions to refuse to grant a
visa made on or after the commencement of the item.