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1998 – 1999
– 2000
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(PARENTS AND OTHER MEASURES) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
The Hon. Philip
Ruddock MP)
ISBN: 0642 436665
MIGRATION LEGISLATION AMENDMENT (PARENTS AND OTHER MEASURES) BILL
2000
OUTLINE
Overview
1 The Migration
Legislation Amendment (Parents and Other Measures) Bill 2000 (“the
Bill”) implements a recent Government decision relating to entry
arrangements for parents and the entitlement of certain non-citizens to
Medicare.
2 The Bill will enable a significant increase in parent migration while
minimising the costs to the Budget. A contingency reserve of 4,000 places has
been set aside in the Migration Program for this purpose.
3 Schedule 1 to the Bill amends the definition of “Australian
resident” contained in subsection 3(1) of the Health Insurance Act
1973 (“the Health Insurance Act”). A person who is an
“Australian resident” within the terms of the definition in
subsection 3(1) is entitled to a Medicare benefit in respect of a professional
service rendered in Australia.
4 The provisions in Schedule 1 remove
entitlement to Medicare for future protection visa applicants during processing
of their visa applications. This will ensure that an incentive is not created
for non-genuine protection visa applicants to lodge visa applications in order
to become entitled to Medicare. However, access to medical care will still be
available to those protection visa applicants who meet the criteria for the
Health Care Component of the Asylum Seeker Assistance Scheme (including those
who would previously have had access to Medicare).
5 Schedule 1 also
removes entitlement to Medicare for parent visa applicants who are currently in,
or enter, Australia on a temporary basis, during processing of their permanent
visa applications. This is necessary because of the introduction in November
1999 of a more flexible visitor visa policy for parents with on-going migration
applications which may result in increased Medicare usage, with the
corresponding financial impact and community reaction. Certain parents,
however, will continue to qualify for limited access to Medicare under
Reciprocal Health Care Agreements.
6 In addition, Schedule 1 provides
that temporary protection visa holders are entitled to Medicare. As a signatory
to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol
relating to the Status of Refugees, Australia has an obligation to provide
appropriate services to those assessed as being in need of protection.
7 Schedule 2 to the Bill makes a technical amendment to the Migration
Act 1958 (“the Migration Act”).
8 Schedule 3 to the Bill amends the Migration Regulations 1994
(“the Migration Regulations”) to:
• replace existing
entry options for parents with new visa classes and subclasses, both offshore
and onshore;
• increase the assurance of support
(“AOS”) bond and period of effect in relation to applicants for the
new parent visa classes; and
• offset health costs of parent entry
by either requiring applicants for the new classes to arrange suitable and
approved private health insurance cover for 10 years, or pay a once off $25,000
health services charge per person.
FINANCIAL IMPACT
STATEMENT
9 The financial impact of the amendments contained in
Schedules 1 and 3 to the Bill is estimated to be budget positive as a result of
the estimated increase in revenue from the health services charge which will
offset expenses arising primarily from increases in a number of demand driven
programs including those in other portfolios.
10 Department of Health and
Aged Care programs affected include the Medical Benefits Scheme, Australian
Health Care Agreements and the Pharmaceutical Benefits Scheme. Department of
Immigration and Multicultural Affairs programs affected include the Adult
Migrant English Program.
11 Removing access to Medicare entitlement for
parents temporarily in Australia with on-going migration applications and for
protection visa applicants results in some savings for the Department of Health
and Aged Care. There are also some additional costs for the Department of
Immigration and Multicultural Affairs as a result of the increased use of the
Health Care component of the Asylum Seeker Assistance Scheme by protection visa
applicants who meet the criteria for the scheme (including those who would
previously have had access to Medicare).
12 The net positive financial
impact of the amendments contained in Schedules 1 and 3 to the Bill is estimated
to be $13.8m in the first year, $84.6m in the second year, $13.9 m in the third
year, and $14.7m in the fourth year (for a total of $127m over the first four
years).
13 The amendment contained in Schedule 2 to the Bill will have
no financial impact.
MIGRATION LEGISLATION AMENDMENT (PARENTS AND OTHER MEASURES) BILL
2000
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1 The short title by which this Act may be cited
is the Migration Legislation Amendment (Parents and Other Measures) Act
2000.
Clause 2 Commencement
2 Subclause 2(1)
provides that sections 1, 2 and 3 commence on the day after the day on which
this Act receives the Royal Assent.
3 Subclause 2(2) provides that
Schedule 1 commences on a day to be fixed by Proclamation.
4 Subclause
2(3) provides that if Schedule 1 does not commence under subsection 2(2) within
6 months of this Act receiving the Royal Assent, then it will commence on the
first day after the end of that period.
5 Subclause 2(4) provides that
Schedule 2 commences, or is taken to have commenced, immediately after the
commencement of the Migration (Visa Application) Charge Amendment Act
2000 which commences on the day after the day on which it receives the Royal
Assent.
6 Subclause 2(5) provides that, subject to subsections 2(6) and (7), Schedule
3 commences on a day to be fixed by Proclamation. Subclause 2(5) further
provides that the day fixed must not be earlier than the day after the day on
which the Migration (Visa Application) Charge Amendment Act 2000 receives
the Royal Assent.
7 Subclause 2(6) provides that, subject to subsection
2(7), if Schedule 3 does not commence under subsection 2(5) within 7 months of
this Act receiving the Royal Assent, then it will commence on the first day
after the end of that period.
8 Subclause 2(7) provides that if the
Migration (Visa Application) Charge Amendment Act 2000 has not received
the Royal Assent within 6 months of this Act receiving the Royal Assent, then
Schedule 3 is repealed on the first day after the end of that period.
9 The effect of subclauses 2(5), (6) and (7) is to ensure that Schedule
3 to this Act does not commence before the Migration (Visa Application)
Charge Amendment Act 2000.
Clause
3 Schedule(s)
10 Subclause 3(1) provides that, subject to section 2,
each Act, and each regulation, specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its
terms.
11 Subclause 3(2) provides that the amendment of any regulation
under subsection 3(1) does not prevent the regulation, as so amended, from being
amended or repealed by the Governor-General.
12 Subclause 3(3) provides
that, to avoid doubt, regulations amended under subsection (1) are taken to
still be regulations.
1 This item makes a technical amendment to the definition of
“Australian resident” in subsection 3(1). This is intended to make
it clear that a person who resides in Australia and who satisfies any one of the
paragraphs in the definition of “Australian resident” is an
“Australian resident”.
2 This item repeals existing paragraph (e) of the definition of
“Australian resident” and inserts new paragraphs (e) and (f).
3 A person who is an “Australian resident” within the terms
of the definition in subsection 3(1) of the Health Insurance Act is
entitled to a Medicare benefit in respect of a professional service rendered in
Australia.
4 Under new paragraph (e), a person is an “Australian
resident” if he or she resides in Australia and holds a temporary
protection visa (a definition of this term is inserted into subsection 3(1) by
item 7 of this Schedule). This new paragraph is intended to ensure that a
person who holds a temporary protection visa is entitled to Medicare benefits.
5 Under new paragraph (f), a person is an “Australian
resident” if he or she resides in Australia and:
• holds a
temporary visa, other than a temporary protection visa, within the meaning of
the Migration Act; and
• has applied for a permanent visa under the
Migration Act and that application has not been finally determined (a definition
of this term is inserted into subsection 3(1) by item 3 of this Schedule); and
• Either:
- another person, being the person’s
spouse, parent or child, is an Australian citizen or the holder of a permanent
visa under the Migration Act; or
- an authority to work in Australia is
in force in respect of the person.
6 In other words, a person who meets
each of the above criteria will be an “Australian resident” for the
purposes of the Health Insurance Act and therefore will be entitled to Medicare
until his or her application for a permanent visa is finally
determined.
7 However, new subparagraphs (f)(iii) and (f)(iv) exclude
from the definition of “Australian resident” a person
who:
• on or after the commencement of new paragraph
(f), applied for a protection visa under the Migration Act (whether or not they
have also applied for any other visa) and that application has not been finally
determined; and
• before or after the commencement
of new paragraph (f), applied for a parent visa under the Migration Act (whether
or not they have also applied for any other visa) and that application has not
been finally determined.
8 The effect of new subparagraphs (f)(iii) and
(f)(iv) is that a temporary visa holder, other than a temporary protection visa
holder, whose application for a protection visa or a parent visa has not been
finally determined, is not entitled to Medicare.
9 New subparagraphs
(f)(iii) and (f)(iv) also ensure that a temporary visa holder, other than a
temporary protection visa holder, who has applied for a permanent visa does not
become disentitled to Medicare simply because he or she has at some time in the
past made an application for a protection visa or a parent visa which has been
finally determined (a definition of this term is inserted into subsection 3(1)
by item 3 of this Schedule).
Item 3 Subsection
3(1)
10 This item inserts a definition for “finally
determined” into subsection 3(1). The definition provides that
“finally determined” has the same meaning as in the Migration
Act.
11 “Finally determined” is defined in subsection 5(9) of
the Migration Act. It provides that a visa application under the Migration Act
is finally determined when either:
• a decision that has been made
in respect of the application is not, or is no longer, subject to any form of
review under Part 5 or 7 of the Migration Act; or
• a decision that
has been made in respect of the application was subject to some form of review
under Part 5 or 7, but the period within which review could be instituted has
ended without a review having been instituted as prescribed.
Item
4 Subsection 3(1)
12 This item inserts a definition for
“Migration Regulations” into subsection 3(1). The definition
provides that “Migration Regulations” means regulations made under
the Migration Act.
Item 5 Subsection 3(1)
13 This item
inserts a definition for “parent visa” into subsection 3(1).
14 The definition of “parent visa” extends
to:
• A person who has applied for a permanent visa that is
included in a class of visas under the Migration Regulations which has the word
“parent” in its title; and
• A person who, before 1
November 1999, applied for a Change in Circumstances (Residence) (Class AG)
visa, a Family (Residence) (Class AO) visa or a General (Residence) (Class AS)
visa under the Migration Regulations and who:
- was nominated for the
grant of that visa by their child who was at least 18 years old when the
application was made; or
- was included in an application made by a
person who was nominated for the grant of that visa by their child who was at
least 18 years old when the application was made.
15 The second part of
the definition of “parent visa” is intended to provide for the
circumstances that existed between 1 September 1994 and 1 November 1998 and
again between 31 March 1999 and 1 November 1999. During this time, the Aged
Parent (Subclass 804) visa was included in the three visa classes listed above
which did not contain the word “parent” in their titles.
16 Since a person applies under the Migration Act for a class of visa
(rather than a subclass) it is incorrect to identify a person as “Aged
Parent (Subclass 804) visa applicant”. Instead, such a person is
identified in the second part of the definition of “parent visa” by
reference to the fact that, at the time of application, the primary applicant
would have been nominated for the grant of the visa by their child who was 18
years or over.
Item 6 Subsection 3(1)
17 This item
inserts a definition for “protection visa” into subsection 3(1).
The definition provides that “protection visa” means a permanent or
temporary visa included in a class of visas under the Migration Regulations that
has the word “protection” in its title.
18 Subsection 36(2)
of the Migration Act provides that a criterion for a protection visa is that the
applicant for the visa is a non-citizen in Australia to whom Australia has
protection obligations under the Convention relating to the Status of Refugees
as amended by the Protocol relating to the Status of Refugees.
Item 7
Subsection 3(1)
19 This inserts a definition for “temporary
protection visa” into subsection 3(1). The definition provides that a
“temporary protection visa” means a temporary visa included in a
class of visas under the Migration Regulations that has the word
“protection” in its title.
Item 1 Subsection 45B(1) (note)
1 This item makes a
technical amendment to the note at the end of subsection 45B(1) to make it clear
that the visa application charge limit is determined under the VAC Act.
2 This amendment is necessary as a consequence of the proposed insertion of
new section 6 into the VAC Act by the Migration (Visa Application) Charge
Amendment Bill 2000.
1 This item inserts a new defined term, “satisfactory private
health insurance cover”, into regulation 1.03. “Satisfactory
private health insurance cover” means an arrangement specified under new
regulation 1.15C inserted by item 2 of this Schedule.
2 The new term is
relevant to calculating the amount of visa application charge payable in respect
of applications for two proposed new visa classes - Supported Aged Parent
(Migrant)(Class CA) and Supported Aged Parent (Residence)(Class DA) - inserted
into the Migration Regulations by item 7 of this Schedule.
3 This item inserts new regulation 1.15C into the Migration Regulations.
This new regulation provides that the Minister for Immigration and Multicultural
Affairs may specify, by notice in the Gazette, an arrangement (or class
of arrangements) as “satisfactory private health insurance cover”.
4 The type of arrangement to be specified under this regulation is an
“applicable benefits arrangement” (within the meaning of the
National Health Act 1953 [“the National Health Act”])
provided by a “registered organization” (also within the meaning of
the National Health Act). Effectively, this means that the Minister can specify
particular health insurance policies, or classes of policies, offered by
particular private health insurance funds as constituting “satisfactory
private health insurance cover”.
5 New paragraph 1.15C(2)(a)
provides that the Minister must not specify an arrangement unless it is
consistent with paragraph (bd) of Schedule 1 to the National Health Act. This
is to ensure that only health insurance products which provide a comprehensive
range of hospital and medical cover may be specified as satisfactory.
6 New paragraph 1.15C(2)(b) further provides that the Minister must not
specify an arrangement which is subject to a modification by election for the
purposes of paragraph (ba) of Schedule 1 to the National Health Act. This is to
ensure that health insurance products which have “front-end
deductibles” – for example, products which require the insured
person to pay a specified amount towards their medical expenses before the
policy will cover them – are excluded from the types of products which may
be specified as satisfactory.
7 This item modifies the assurance of support (“AOS”) scheme
provided for under the Migration Regulations. The scheme allows the
Commonwealth to recover specified social security benefits paid to an assured
person while an AOS is in effect in respect of that person. Currently, under
regulation 2.36, the period of effect of an AOS is 2 years.
8 An AOS is
a criterion for grant of certain visas under the Migration Regulations,
including the proposed new visa subclasses contained in the Supported Aged
Parent (Migrant) (Class CA) and Supported Aged Parent (Residence) (Class DA)
visa classes.
9 This item substitutes new paragraph 2.36(1)(b) to provide
for a 10-year period of effect for an AOS given in respect of an applicant for
one of the above classes. The period of effect for an AOS given in respect of
an applicant for any other class of visa will remain 2 years.
10 The
extension of the AOS period to 10 years in respect of these applicants is
intended to ensure that the requirement to reside in Australia for 10 years
before a person can access an Age Pension is given real meaning. For example,
once the two year AOS period has passed, a parent can access Special Benefit for
the remaining eight years until they become eligible for Age Pension. The
amendment in Item 3 is intended to ensure that the Commonwealth can recover any
Special Benefit (around $8,500 per person per annum), or any other benefit
listed in regulation 2.38, received by a parent during the first 10 years of
residence.
11 This item increases the amount of money which must be lodged as a bond
in relation to an AOS given in respect of an applicant for a Supported Aged
Parent (Migrant)(Class CA) visa or a Supported Aged Parent (Residence)(Class DA)
visa.
12 Regulation 2.39 provides for lodgement of a bond in respect of
a “required” AOS. A “required” AOS is one that is an
unconditional requirement for the grant of a visa. The criteria for the
proposed new visa subclasses contained in the Supported Aged Parent (Migrant)
(Class CA) and Supported Aged Parent (Residence) (Class DA) visa classes include
a required AOS.
13 Under subregulations 2.39(2) and (3), a person who
gives a required AOS in respect of an applicant for a visa who has turned 18,
must lodge with the Minister a bond, securing payment to the Commonwealth, on
demand, of any amount (up to the amount of the bond) due to the Commonwealth
under regulation 2.38. This represents the first step only in any debt recovery
action taken by the Commonwealth. The bond must be lodged before a decision is
made on the application to which the required AOS relates.
14 The bond
payable in relation to an applicant for a Supported Aged Parent (Migrant) (Class
CA) visa or a Supported Aged Parent (Residence) (Class DA) visa who is over 18
years of age and who satisfies the primary criteria for the grant of a visa is
increased from $3,500 to $10,000. The bond payable in relation to an applicant
who is over 18 years of age who satisfies the secondary criteria is increased
from $1,500 to $4,000.
15 The increased bond amount for these applicants
is intended to more closely reflect the potential cost to the Budget of an aged
parent who relies on social security. Currently, the cost of Special Benefit
that a parent can access in lieu of the Age Pension is around $8,500 per person
per annum. After ten years’ residency a person of pensionable age can then
access an Age Pension of around $9,500 per annum.
16 This bond will be
released, with interest after ten years, less any amount needed to repay
recoverable benefits and allowances paid to the assuree during that period.
However, in certain circumstances the bond may be released earlier - for
example, if the assurer or assuree dies before the end of AOS
period.
17 Under new subregulation 2.39(5), the current bond amount is
retained for applications for any other class of visa.
18 These items insert new paragraphs 1124(3)(c) and 1124A(3)(d) into
items 1124 and 1124A respectively of Schedule 1 to the Migration Regulations.
These new paragraphs each provide that a valid application for a Parent
(Migrant) (Class AX) visa and an Aged Parent (Residence) (Class BP) visa must be
made before the day on which the new paragraphs commence.
19 Persons
with undecided applications for one of the above visa classes will be able to
apply for the new Supported Aged Parent (Migrant)(Class CA) visa or Supported
Aged Parent (Residence)(Class DA) visa (as applicable) without paying the first
instalment of the visa application charge (please see new subparagraphs
1130A(2)(a)(i) and 1130B(2)(a)(i)).
20 This item inserts new items 1130A and 1130B into Schedule 1 to the
Migration Regulations. These items contain two new visa classes: the Supported
Aged Parent (Migrant) (Class CA) visa class (new item 1130A) and the Supported
Aged Parent (Residence) (Class DA) visa class (new item 1130B).
Supported Aged Parent (Migrant) (Class CA)
21 The
requirements for making a valid application for the new Supported Aged Parent
(Migrant) (Class CA) visa class are as follows:
• Applications must
be made on form 47PA;
• The first instalment of the visa
application charge is:
- Nil in relation to an applicant who, prior to
the commencement of this item, made a valid application for a Parent (Migrant)
(Class AX) visa, consisting of Subclass 103 (Parent), in relation to which no
decision to grant, or refuse to grant, that visa has been made.
- $1,075 in
any other case.
• The second instalment of the visa application
charge is:
- Nil in relation to an applicant who presents satisfactory
evidence of satisfactory private health insurance cover for at least 10 years
from the date the Minister accepts the AOS given in respect of the
applicant.
- In any other case:
♦ for an applicant who was under 18
years at the time of application: $960; and
♦ for an applicant who was
18 years or over at the time of application: $25,000 (this charge represents
approximately 20% of the average projected lifetime health costs to taxpayers in
relation to females aged 61 years and males aged 65
years).
• Applications must be made outside
Australia.
• The applicant must be outside
Australia.
• An application by a member of the family unit may be
made at the same time and place as, and combined with, the application of the
applicant who must satisfy the primary criteria.
22 The class contains
one visa subclass – Supported Aged Parent (Subclass 107). The criteria
for the grant of a visa in this subclass are inserted into Schedule 2 to the
Migration Regulations by item 8 of this Schedule.
Supported Aged
Parent (Residence) (Class DA)
23 The requirements for making a valid
application for the new Supported Aged Parent (Residence) (Class DA) visa class
are as follows:
• Applications must be made on form
47PA.
• The first instalment of the visa application charge
is:
- Nil in relation to an aged parent who, prior to the day on which
this item commences, made a valid application for an Aged Parent (Residence)
(Class BP) visa, or a Family (Residence) (Class AO) visa or a General
(Residence) (Class AS) visa, in relation to which no decision to grant, or
refuse to grant, that visa has been made; and
- $1,595 in any other
case.
• The second instalment of the visa application charge is:
- Nil in relation to an applicant who presents satisfactory evidence of
satisfactory private health insurance cover for at least 10 years from the date
the Minister accepts the AOS given in respect of the applicant.
- In any
other case:
♦ for an applicant who was under 18 years at the time of
application: $960; and
♦ for an applicant who was 18 years or over at
the time of application: $25,000 (this charge represents approximately 20% of
the average projected lifetime health costs to taxpayers in relation to females
aged 61 years and males aged 65 years).
• Applications must be made
in Australia but not in immigration clearance.
• The applicants
must be in Australia but not in immigration clearance.
• An
application by a member of the family unit may be made at the same time and
place as, and combined with, the application of the applicant seeking to satisfy
the primary criteria.
24 The class contains one visa subclass –
Supported Aged Parent (Subclass 860). The criteria for the grant of a visa in
this subclass are inserted into Schedule 2 to the Migration Regulations by item
9 of this Schedule.
25 This item inserts new Part 107 into Schedule 2 of the Migration
Regulations. The purpose of new Part 107 is to make provision for the grant of
a Subclass 107 visa to an aged parent, to a working age parent with a minor
dependent child in Australia, or to members of the family unit of an aged parent
or a working age parent who satisfies the primary criteria.
26 An
“aged parent” is defined, at regulation 1.03 of the Migration
Regulations, as a parent who is old enough to be granted an age pension under
the Social Security Act 1991. Regulation 1.03 further provides that a
“working age parent” is a parent who is not an aged
parent.
27 The criteria for Subclass 107 are broadly
similar to the criteria for the existing Parent (Subclass 103) visa, with the
exception that Subclass 107 does not provide for the grant of a visa to a
working age parent unless that parent has a minor dependent child in
Australia.
28 New Division 107.2 provides for the primary criteria
which must be satisfied by an applicant for the grant of a Subclass 107 visa.
The primary criteria must be satisfied by at least 1 member of a family unit.
The other members of the family unit who are applicants for Subclass 107 visa
need satisfy only the secondary criteria.
29 The note under the heading
to Subdivision 107.1 sets out that, in addition to “aged parent and
“working aged parent”, the terms “close relative”,
“dependent child”, “eligible New Zealand citizen”,
“guardian”, “settled” and “spouse” are
defined in regulation 1.03, and the term “balance of family test” is
defined in regulation 1.05.
30 New Subdivision 107.21 sets out the
primary criteria to be satisfied at the time of application. In particular, new
clause 107.211 provides that an applicant meets the requirements of:
• Subclause 107.211(2) - if the applicant is a working age parent
with a dependent child in Australia who has not turned 18 and who is a settled
Australian citizen, a settled Australian permanent resident or a settled
eligible New Zealand citizen; and
• Subclause 107.211(3) - if the
applicant is an aged parent of a settled Australian citizen, a settled
Australian permanent resident or a settled eligible New Zealand
citizen.
31 New clause 107.212 requires that, if the applicant meets the
requirements of subclause 107.211(2), the applicant is to be
sponsored:
• by a settled dependent child of the applicant who has
turned 18; or
• if the applicant has no settled dependent child who
has turned 18:
- by a person who:
♦ is a close relative or
guardian of a settled dependent child of the applicant who has not turned 18;
and
♦ has turned 18; and
♦ is a settled Australian citizen, a
settled Australian permanent resident or a settled eligible New Zealand citizen;
or
- by a community organisation.
32 New
subclause 107.212(2) provides that “settled dependent child” means a
dependent child of the applicant who is a settled Australian citizen, a settled
Australian permanent resident or a settled eligible New Zealand
citizen.
33 New clause 107.213 requires that, if the applicant
meets the requirements of subclause 107.211(3), the applicant is to be
sponsored:
• if the relevant child has turned 18, by:
- that
child; or
- that child’s cohabiting spouse, if that
spouse:
♦ has turned 18; and
♦ is a settled Australian
citizen, a settled Australian permanent resident or a settled eligible New
Zealand citizen; or
• if the relevant child has not turned 18,
by:
- that child’s cohabiting spouse, if that
spouse:
♦ has turned 18; and
♦ is a settled Australian
citizen, a settled Australian permanent resident or a settled eligible New
Zealand citizen; or
- a person who:
♦ is a close relative or
guardian of the relevant child; and
♦ has turned 18; and
♦ is
a settled Australian citizen, a settled Australian permanent resident or a
settled eligible New Zealand citizen; or
- if the relevant child has a
cohabiting spouse but the spouse has not turned 18 – a person
who:
♦ is a close relative or guardian of the relevant child’s
spouse; and
♦ has turned 18; and
♦ is a settled Australian
citizen, a settled Australian permanent resident or a settled eligible New
Zealand citizen; or
- a community
organisation.
34 New subclause 107.213(4) provides
that “relevant child” means the settled Australian citizen, settled
Australian permanent resident or settled eligible New Zealand citizen mentioned
in subclause 107.211(3).
35 New clause 107.214 requires the
applicant to satisfy the balance of family test. The balance of family test is
defined at regulation 1.05 of the Migration Regulations. Broadly, a parent will
satisfy the test if:
• at least half of their children live in
Australia; or
• the number of children in Australia is greater than
the greatest number of children resident in any single country
overseas.
36 New Subdivision 107.22 sets out the primary criteria to be
satisfied at the time of decision.
37 New clause 107.221 provides that
the applicant must continue to satisfy the criterion specified in clause
107.211.
38 New clause 107.222 provides that the sponsorship referred to
in clause 107.212 or 107.213 must be approved by the Minister and still in
force.
39 New clause 107.223 provides that the applicant must continue to
satisfy the balance of family test.
40 New clause 107.224 requires the
applicant to satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4009
and 4010. These criteria relate, broadly, to issues of health, character and
other aspects of the public interest.
41 New clause 107.225 requires
that, if the applicant has previously been in Australia, the applicant satisfies
special return criteria 5001, 5002 and 5010.
42 New clause 107.226
requires that an AOS in relation to the applicant has been given and been
accepted by the Minister. Items 3 and 4 of this Schedule introduce modified AOS
arrangements in respect of a primary applicant for a Supported Aged Parent
(Migrant) (Class CA) visa, including an AOS period of 10 years and an AOS bond
of $10,000.
43 New subclause 107.227(1) requires each member of the
family unit of the applicant who is an applicant for a Supported Aged Parent
(Migrant) (Class CA) visa to satisfy:
• public interest criteria
4001, 4002, 4003, 4004, 4005, 4009 and 4010; and
• special return
criteria 5001, 5002 and 5010, if the applicant has previously been in
Australia.
44 New subclause 107.227(2) requires each member of the family
unit of the applicant who is not an applicant for a Supported Aged Parent
(Migrant) (Class CA) visa to satisfy:
• public interest criteria
4001, 4002, 4003 and 4004; and
• public interest criterion 4005, unless
the Minister is satisfied that it would be unreasonable to require the person to
undergo an assessment in relation to that criterion.
45 New clause
107.228 requires that if a person (the “additional applicant”):
• is a member of the applicant’s family unit; and
• has
not turned 18; and
• made a combined application with the
applicant
new public interest criteria 4015 and 4016 (to be inserted into
the Migration Regulations, with effect from 1 July 2000, by Statutory Rules No.
62 of 2000) must be satisfied.
46 New public interest criterion 4015
will provide that the Minister must be satisfied of one of the
following:
• the law of the additional applicant’s home
country permits the removal of the applicant;
• each person who can
lawfully determine where the additional applicant is to live consents to the
grant of the visa;
• the grant of the visa would be consistent with any
Australian child order in force in relation to the additional
applicant.
47 New public interest criterion 4016 will provide that the
Minister must be satisfied that there is no compelling reason to believe that
the grant of the visa would not be in the best interests of the additional
applicant.
48 New Division 107.3 provides for the secondary criteria
which must be satisfied for the grant of a Subclass 107 visa. Secondary
criteria must be satisfied by applicants who are members of the family unit of a
person who satisfies the primary criteria.
49 New Subdivision 107.31 sets
out the secondary criteria to be satisfied at the time of
application.
50 New clause 107.311 provides that the applicant, at the
time of application, must be a member of the family unit of, and have made a
combined application with, a person who satisfies the primary criteria in
Subdivision 107.21.
51 New clause 107.312 requires that, at the time of
application, the sponsorship referred to in clauses 107.212 and 107.213 of the
person who satisfies the primary criteria includes sponsorship of the
applicant.
52 New Subdivision 107.32 sets out the secondary criteria to
be satisfied at the time of decision.
53 New clause 107.321 provides
that the applicant must continue to be a member of the family unit of a person
who, having satisfied the primary criteria, holds a Subclass 107
visa.
54 New clause 107.322 provides that the sponsorship referred to in
clause 107.312 must be approved by the Minister and still in
force.
55 New clause 107.323 requires the applicant to satisfy public
interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
56 New
clause 107.324 requires that, if the applicant has previously been in Australia,
the applicant satisfies special return criteria 5001, 5002 and
5010.
57 New clause 107.325 requires that either:
• the
applicant must be included in the AOS given in relation to the person who
satisfies the primary criteria, and that the assurance has been accepted by the
Minister; or
• an AOS in relation to the applicant has been given to,
and been accepted by, the Minister.
58 Items 3 and 4 of this Schedule
introduce modified AOS arrangements in respect of a secondary applicant for a
Supported Aged Parent (Migrant) (Class CA) visa, including an AOS period of 10
years and an AOS bond of $4,000.
59 New clause 107.326 requires that if
the applicant has not turned 18, new public interest criteria 4017 and 4018 (to
be inserted into the Migration Regulations, with effect from 1 July 2000, by
Statutory Rules No. 62 of 2000) must be satisfied.
60 New public
interest criterion 4017 will provide that the Minister must be satisfied of one
of the following:
• the law of the applicant’s home country
permits the removal of the applicant;
• each person who can lawfully
determine where the applicant is to live consents to the grant of the
visa;
• the grant of the visa would be consistent with any Australian
child order in force in relation to the applicant.
61 New public interest
criterion 4018 will provide that the Minister must be satisfied that there is no
compelling reason to believe that the grant of the visa would not be in the best
interests of the applicant.
62 New clause 107.411 requires that the
applicant must be outside Australia when the visa is granted. The note at the
end of new clause 107.411 provides that the second instalment of the visa
application charge (if any) must be paid before the visa can be
granted.
63 New clause 107.511 provides that a Subclass 107 visa is a
permanent visa permitting the holder to travel to and enter Australia for a
period of 5 years from the date of grant.
64 New clause 107.611 requires
that an applicant’s first entry as the holder of a Subclass 107 visa must
be made before a date specified by the Minister.
65 New clause 107.612
specifies that either or both of conditions 8502 and 8515 may be imposed.
Condition 8502 provides that the holder of the visa must not enter Australia
before the entry to Australia of a person specified in the visa. Condition 8515
provides that the holder of the visa must not marry before entering
Australia.
66 New clause 107.711 requires that the visa be evidenced by
way of a visa label affixed to a valid passport.
67 This item inserts new Part 860 into Schedule 2 of the Migration
Regulations. The purpose of new Part 860 is to make provision for the grant of
a Subclass 860 visa to an aged parent, or to members of the family unit of an
aged parent who satisfies the primary criteria.
68 The
criteria for Subclass 860 are broadly similar to the criteria for the existing
Aged Parent (Subclass 804) visa, with the exception that the primary applicant
must be an aged parent at time of application rather than at time of decision as
specified in Subclass 804.
69 The note under
the heading to Subdivision 860.1 sets out that the terms “aged
parent”, “dependent child”, and “eligible New Zealand
citizen” are defined in regulation 1.03, and the term “balance of
family test” is defined in regulation 1.05.
70 New Division
860.2 provides for the primary criteria which must be satisfied by an applicant
for the grant of a Subclass 860 visa. The primary criteria must be satisfied by
at least 1 member of a family unit. The other members of the family unit who
are applicants for Subclass 860 visa need satisfy only the secondary
criteria.
71 New Subdivision 860.21 sets out the primary criteria to be
satisfied at the time of application.
72 New clause 860.211 requires that
the applicant must be nominated for the grant of a Subclass 860 visa by a child
of the applicant who has turned 18 and who is a settled Australian citizen, a
settled Australian permanent resident, or a settled eligible New Zealand
citizen.
73 New clause 860.212 requires the applicant to be an aged
parent of the Australian citizen, Australian permanent resident or eligible New
Zealand citizen of the person who nominated the applicant for the grant of the
visa.
74 New clause 860.213 provides for an extra criterion to be
satisfied by an applicant who is not mentioned in subparagraph
1130B(2)(a)(i) of Schedule 1 to the Migration Regulations. Broadly,
subparagraph 1130B(2)(a)(i) covers persons with undecided applications for
existing visa classes containing the Aged Parent (Subclass 804)
visa.
75 The extra criterion in clause 860.213 requires
that:
• the applicant is the holder of a substantive visa (other
than a Transit (Subclass 771) visa); or
• if the applicant is not the
holder of a substantive visa, the applicant:
- was not, immediately
before ceasing to hold a substantive visa, the holder of a Transit (Subclass
771) visa, and
- must satisfy Schedule 3 criterion
3002.
76 Section 5 of the Migration Act provides that a substantive visa
is a visa other than a bridging visa, a criminal justice visa or an enforcement
visa. The Transit (Subclass 771) visa is granted to certain persons outside
Australia whose purpose in travelling to Australia is to 'transit', in other
words to pass through on their way to another country.
77 New Subdivision
860.22 sets out the primary criteria to be satisfied at the time of
decision.
78 New clause 860.221 provides that the applicant must continue
to satisfy the criterion specified in clause 860.211.
79 New clause
860.222 requires that the applicant must satisfy the balance of family
test.
80 New clause 860.223 requires that an AOS in relation to the
applicant must be given to, and be accepted by, the Minister. Items 3 and 4 of
this Schedule introduce modified AOS arrangements in respect of a primary
applicant for a Supported Aged Parent (Residence) (Class DA) visa, including an
AOS period of 10 years and an AOS bond of $10,000.
81 New clause 860.224
requires the applicant to satisfy public interest criteria 4001, 4002, 4003,
4004, 4005, 4009 and 4010. These criteria relate, broadly, to issues of health,
character and other aspects of the public interest.
82 New subclause
860.225(1) requires each member of the family unit of the applicant who is an
applicant for a Subclass 860 visa to satisfy public interest criteria 4001,
4002, 4003, 4004, 4005, 4009 and 4010.
83 New subclause 860.225(2)
requires each member of the family unit of the applicant who is not an applicant
for a Subclass 860 visa to satisfy:
• public interest criteria
4001, 4002, 4003 and 4004; and
• public interest criterion 4005, unless
the Minister is satisfied that it would be unreasonable to require the person to
undergo an assessment in relation to that criterion.
84 New clause
860.226 requires that if a person (the “additional
applicant”):
• is a member of the applicant's family unit;
and
• has not turned 18; and
• made a combined application
with the applicant;
new public interest criteria 4015 and 4016 (to be
inserted into the Migration Regulations, with effect from 1 July 2000, by
Statutory Rules No. 62 of 2000) must be satisfied. Please see paragraphs 46 and
47 of this explanatory memorandum for an outline of new criteria 4015 and
4016.
85 Division 860.3 provides for the secondary criteria which must be
satisfied for the grant of a Subclass 860 visa. The note to this Division
provides that if a person satisfies the primary criteria, members of the family
unit of that person are eligible for the grant of the visa if they satisfy the
secondary criteria and their applications are made before the Minister has
decided to grant or refuse to grant the visa to the first person.
86 New
Subdivision 860.31 sets out the secondary criteria to be satisfied at the time
of application.
87 New clause 860.311 provides that the applicant must
be a member of the family unit of person who:
• has applied for a
Supported Aged Parent (Residence) (Class DA) visa; and
• on the basis
of the information provided in his or her application, appears to satisfy the
criteria in Subdivision 860.21;
and the Minister must not have decided to
grant, or refuse to grant, the visa to that other applicant.
88 New
Subdivision 860.32 sets out the secondary criteria to be satisfied at the time
of decision.
89 New clause 860.321 provides that the applicant must be a
member of the family unit of a person who, having satisfied the primary
criteria, is the holder of a Subclass 860 visa.
90 New clause 860.322
requires the applicant to satisfy public interest criteria 4001, 4002, 4003,
4004, 4005, 4009 and 4010.
91 New clause 860.323 provides that,
either:
• an AOS in relation to the relevant person who satisfies
the primary criteria, that includes the applicant, has been given, and been
accepted by the Minister; or
• an AOS in relation to the applicant has
been given to, and been accepted by, the Minister.
92 New clause 860.324
requires that if the applicant has not turned 18, new public interest criteria
4017 and 4018 (to be inserted into the Migration Regulations, with effect from 1
July 2000, by Statutory Rules No. 62 of 2000) must be satisfied. Please see
paragraphs 60 and 61 of this explanatory memorandum for an outline of new
criteria 4017 and 4018.
93 New clause 860.411 requires that the applicant
must be in Australia, but not in immigration clearance, when the visa is
granted. The note at the end of new clause 860.411 provides that the second
instalment of the visa application charge (if any) must be paid before the visa
can be granted.
94 New clause 860.511 provides that a Subclass 860 visa
is a permanent visa permitting the holder to travel to and enter Australia for a
period of 5 years from the date of grant.
95 New Division 860.6 provides
that there are no conditions attached to Subclass 860 visas.
96 New
clause 860.711 requires that the visa be evidenced by way of a visa label
affixed to a passport.