MIGRATION AMENDMENT REGULATIONS 2001 (NO. 3) 2001 NO. 86

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 3) 2001 NO. 86

EXPLANATORY STATEMENT

STATUTORY RULES 2001 No. 86

Issued by the Authority of the Minister for Immigration and Multicultural Affairs

Migration Act 1958

Migration Amendment Regulations 2001 (No. 3)

Subsection 504(1) of the Migration Act 1958 ("the Act") provides 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.

Details of additional regulation-making powers under the Act are in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 to:

- make changes consequential to the repeal of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991 and the making of the Education Services for Overseas Students Act 2000;

- change bridging visa provisions to allow a bridging visa to be granted, in certain circumstances, where a non-citizen's student visa has been automatically cancelled under new section 137J of the Act. Bridging visas enable non-citizens to remain lawfully in the community. The non-citizen would otherwise have to pursue revocation of the automatic cancellation, or review of a decision not to revoke the automatic cancellation, in immigration detention;

- clarify that a non-citizen child born in Australia is not required to provide evidence of identity in respect of his or her entering Australia upon birth;

- allow a student visa holder to be granted a Subclass 442 (Occupational Trainee) visa if they are required to gain practical employment experience after graduation, provided that they also meet the other requirements for grant of the visa. he experience must be necessary to obtain registration in a profession and e registration must be a prerequisite for the practice of the profession in the person's usual country of residence;

- more fully recognise the role of State/Territory governments in sponsoring business owners and senior executives for business skills visas, and simplify the sponsorship process;

- enable a person who held a provisional Spouse visa or a provisional Interdependency visa, granted before 1 November 1999, that expired while the person was out of Australia due to the expiry of a 30 month travel facility, to meet the time of decision criteria of the respective permanent Spouse visa or the permanent Interdependency visa. Currently such persons are unable to meet the criteria for the grant of the permanent visa;

- enable a student who has had his or her visa cancelled under s137J of the Act to be classed as an 'eligible non-citizen'. This will allow the student to apply for a Bridging E (Class WE) visa. This means the student can avoid being held in immigration detention for an extended period of time whilst pursuing revocation of the cancellation, or merits review of a decision not to revoke visa cancellation;

- reflect that a reference to 'designated area' in Subclass 139 is not limited to regional areas;

- specify the time period within which a person, seeking review of an MRT-reviewable decision under subsection 338(7A) of the Act, must lodge the approved application form; and

- make technical amendments to a number of provisions in the Regulations to clarify issues relating to bridging visas.

Details of the Regulations are set out in Attachment B.

The Regulations commence on 1 July 2001 other than Schedule 1. Schedule 1 is taken to have commenced on 1 September 1994. The amendment clarifies that from the time of the commencement of the Migration Regulations 1994, any non-citizen child born in the migration zone (and who has not left the migration zone since birth) is not required to comply with the requirements of section 166 of the Act.

Schedule 1 is retrospective to 1 September 1994. The retrospectivity is not prejudicial to any person

and does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

ATTACHMENT A

Details of other relevant regulation-making powers are as follows:

- subsections 29(2) and (3) of the Act provide that the regulations may provide a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;

- subsection 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class;

- subsection 72(1) of the Act defines the term 'eligible non-citizen' to mean a non-citizen who has been immigration cleared, or is in a prescribed class of persons or who the Minister has determined to be an eligible non-citizen;

- subsection 93(1) of the Act provides that the Minister shall make as assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant;

- paragraph 137J(2)(b) of the Act provides that a non-citizen's visa is cancelled by force of section 137J in certain circumstances, unless the non-citizen attends at an office of Immigration to give a certain explanation. "Office of Immigration" has the meaning within the meaning of the regulations;

- subsection 168(3) of the Act provides that a person in a prescribed class is not required to comply with section 166 of the Act; and

- paragraph 347(1)(b) of the Act provides that an application for review of an MRT -reviewable decision must be given to the Tribunal within the period prescribed by the regulations.

ATTACHMENT B

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 3).

Regulation 2 - Commencement

This regulation provides that:

- Regulations 1 and 2, subregulation 3(1) and Schedule 1 are taken to have commenced on 1 September 1994; and

- the remainder commences on 1 July 2001.

The amendment made by Schedule 1 is beneficial. It clarifies that from the time of the commencement of the Migration Regulations 1994, any non-citizen child born in the migration zone (and who has not left the migration zone since birth) is not required to comply with the requirements of section 166 of the Act. Section 166 requires certain evidence of identity to be given upon entering Australia.

Regulation 3 - Amendment of Migration Regulations 1994

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

Subregulation 3 (2) provides that Schedule 2 amends the Migration Regulations 1994.

Regulation 4 - Transitional

Subregulation 4(1) provides that the amendments made by items [2105] to [2107], [2201], [2314] to [2327], [2331], [2333], [2401] and [2402] of Schedule 2 apply to an application for a visa:

(a) made, but not finally determined, before 1 July 2001; or

(b) made on or after 1 July 2001.

Subregulation 4(2) provides that the amendments made by items [2108] to [2112], [2114], [2202] to [2207], [2301] to [2313], [2328] to [2330], [2332] and [2334] to [2338] of Schedule 2 apply to an application for a visa made on or after 1 July 2001.

Schedule 1 - Amendment taken to have commenced on 1 September 1994

Item [1101] - Schedule 9, Part 2, after item 1

The amendment to Part 2 of Schedule 9 makes clear that non-citizen children born in the migration zone are not required to comply with section 166 of the Act in respect of their "entry" to Australia on their birth.

Section 10 of the Act provides that a non-citizen child born in the migration zone is taken to have "entered" Australia at the time of his or her birth.

"Enter Australia" is defined in subsection 5(1) of the Act to mean "enter the migration zone".

Section 166 of the Act, in summary, provides that any person who enters Australia must provide evidence of identity and evidence of any visa held. This is normally done at the airport or seaport.

This obligation was not devised with the intention of it being imposed upon non-citizen children born in Australia who are taken to have entered Australia under section 10.

However, as the Act is silent on the status of non-citizen newborn children, it is unclear whether non-citizen children born in Australia and taken to have entered Australia under section 10 need to comply with section 166.

Subsection 168(3) of the Act provides that a person in a prescribed class is not required to comply with section 166.

Part 2 of Schedule 9 to the Migration Regulations 1994 ("the Regulations") prescribes persons not required to comply with section 166 of the Act, pursuant to subsection 168(3).

The amendment ensures that non-citizen children born in Australia are not required to comply with section 166 of the Act in respect of their "entry" on their birth. However, such children are required to comply with section 166 in respect of any later entries to Australia.

Schedule 2 - Amendments commencing on 1 July 2001

Part 2.1 - Amendments of Parts 1, 2 and 4

Item [2101] - Regulation 1. 03, definitions of category A course, category B course and education provider

This item contains a technical amendment. It amends the definitions of category A course, category B course and education provider as a result of the repeal of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991, and the making of the Education Services for Overseas Students Act 2000.

Item [2102] - Regulation 1.03, definition of registered course and note following that definition

This item contains a technical amendment. It amends the definition of registered course, and the note following that definition, consequential to the repeal of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991, and the making of the Education Services for Overseas Students Act 2000.

Item [2103] - Regulation 1.03, after definition of subsidised student

This item inserts a definition of suspended education provider, after the definition of subsidised student, in regulation 1.03. A suspended education provider is an education provider for which a suspension certificate is in effect under Division 2 of Part 6 of the Education Services for Overseas Students Act 2000.

Generally, an applicant for a student visa will not be granted a student visa if they are enrolled in a course which is provided by a suspended education provider.

Item [2104] - After Division 1.5

This item inserts new Division 1.6 into the Regulations, pursuant to section 101 of the Education Services for Overseas Students Act 2000.

Section 101 of the above Act sets out the effect of the Immigration Minister giving a registered provider an Immigration Minister's suspension certificate.

Essentially, whilst an Immigration Minister's suspension certificate is in effect for a registered provider, that provider is guilty of an offence if he or she makes, offers, or invites certain people (including prescribed non-citizens) to undertake or be provided with a course run by the provider. Whilst the certificate is in effect, it is also an offence for a person to hold out that that provider is able or willing to provide a course to certain people (including prescribed non-citizens).

In new Division 1.6, new regulation 1.30 sets out who a prescribed non-citizen is for the purposes of section 101 of the Education Services for Overseas Students Act 2000.

A prescribed non-citizen is an applicant for, or the holder of, a student visa. "Student visa" is defined in regulation 1.03 of the Regulations to mean a Student (Temporary) (Class TU) visa.

Item [2105] - Subparagraph 2.20(6)(a)(1)

Item [2106] - Subparagraph 2.20 (6)(a)(ii)

These two items clarify the operation of subparagraphs 2.20(6)(a)(i) and 2.20(6)(a)(ii).

Regulation 2.20 prescribes classes of persons who are eligible non-citizens, pursuant to paragraph 72(1)(b) of the Act. A prerequisite to a person being eligible for a bridging visa is that they must be an eligible non-citizen.

On a strict reading of subparagraphs 2.20(6)(a)(i) and 2.20(6)(a)(ii), a person would not be an eligible non-citizen if:

• they bypassed immigration clearance on or after 1 September 1994 and were subsequently granted a bridging visa; or

• they entered Australia without authority before 1 September 1994 and were subsequently granted a bridging visa.

That is, they would be prevented from applying for a further visa. This was not intended.

The amendments make it clear that a person is not prevented from being an eligible non-citizen under subregulation 2.20(6) on the basis that they have already been granted a bridging visa.

Item [2107] - Paragraph 2.20(6)(c)

This item omits paragraph 2.20(6)(c). Due to paragraph 2.20(6)(c), subregulation 2.20(6) only applies to a non-citizen who has remained in Australia since 1 September 1994. This is no longer intended to be a requirement under subregulation 2.20(6).

Item [2108] - After subregulation 2.20(6)

This item inserts new subregulation 2.20(6A) into regulation 2.20. This amendment enables a certain group of students to be classed as 'eligible non-citizens'.

The amendment is consequential to amendments to the Act dealing with the automatic cancellation of student visas.

New section 137J of the Act provides for the cancellation of student visas in circumstances where there has been a failure to comply with a notice of breach. In certain circumstances, the student may not receive the notice.

It is possible that a visa may be cancelled while the student is overseas and the noncitizen may arrive in Australia unaware that their visa has been cancelled.

Upon arrival the student will be refused immigration clearance and will be held in immigration detention. If, while in Australia, the student wishes to apply for revocation of the cancellation of their student visa or merits review of the decision not to revoke the cancellation, the student will remain in immigration detention for that period.

In order to apply for a Bridging E (Class WE) visa to pursue these avenues outside immigration detention the student needs to come within the definition of 'eligible noncitizen'.

Subsection 72 (1) of the Act defines 'eligible non-citizen' as a non-citizen who has been immigration cleared, or is in a prescribed class of persons, or the Minister has determined to be an eligible non-citizen.

The amendment to regulation 2.20, which lists the prescribed classes of persons, therefore enables such a student to be classed as an 'eligible non-citizen'.

Item [2109] - Subparagraph 2.29(a)(ii)

This item amends subparagraph 2.29(a)(ii) by omitting the reference to a notification of the kind referred to in subclause 129.215(2), and replacing it with a reference to a sponsorship of the kind referred to in clause 129.215.

Regulation 2.29 defines references to applicants for different visa subclasses, for the purposes of applying the business skills points test in Schedule 7.

Part 129 of Schedule 2 is amended by these Regulations to remove the requirement to provide a notification that a regional authority will consider sponsoring a visa applicant. Instead, applicants will be required to provide a sponsorship from the authority. The reference to a notification in subparagraph 2.29(a)(ii) is therefore being replaced with a reference to a sponsorship.

Item [2110] - Subparagraph 2.29(b)(ii)

This item amends subparagraph 2.29(b)(ii) by omitting the reference to a notification of the kind referred to in subclause 130.213(2), and replacing it with a reference to a sponsorship of the kind referred to in clause 130.213.

Regulation 2.29 defines references to applicants for different visa subclasses, for the purposes of the application of the business skills points test in Schedule 7 to the regulations.

Part 130 of Schedule 2 is amended by these Regulations to remove the requirement to provide a notification that a regional authority will consider sponsoring a visa applicant. Instead, applicants will be required to provide a sponsorship from the authority. The reference to a notification in subparagraph 2.29(b)(ii) is therefore being replaced with a reference to a sponsorship.

Item [2111] - Subparagraph 2.29(c)(ii)

This item amends subparagraph 2.29(c)(ii) by omitting the reference to a notification of the kind referred to in subclause 129.215(2), and replacing it with a reference to a sponsorship of the kind referred to in clause 129.215.

Regulation 2.29 defines references to applicants for different visa subclasses, for the purposes of the application of the business skills points test in Schedule 7 to the regulations.

Part 129 of Schedule 2 is amended by these Regulations to remove the requirement to provide a notification that a regional authority will consider sponsoring a visa applicant. Instead, applicants will be required to provide a sponsorship from the authority. The reference to a notification in subparagraph 2.29(c)(ii) is therefore being replaced with a reference to a sponsorship.

Item [2112] - Subparagraph 2.29(d)(ii)

This item amends subparagraph 2.29(d)(ii) by omitting the reference to a notification of the kind referred to in subclause 130.213(2), and replacing it with a reference to a sponsorship of the kind referred to in clause 130.213.

Regulation 2.29 defines references to applicants for different visa subclasses, for the purposes of the application of the business skills points test in Schedule 7 to the regulations.

Part 130 of Schedule 2 is amended by these Regulations to remove the requirement to provide a notification that a regional authority will consider sponsoring a visa applicant. Instead, applicants will be required to provide a sponsorship from the authority. The reference to a notification in subparagraph 2.29(d)(ii) is therefore being replaced with a reference to a sponsorship.

Item [2113] - After Subdivision 2.9.2

This item inserts new Subdivision 2.9.2A "Automatic cancellation of student visas", which provides a definition of office of Immigration for paragraph 137J(2)(b) of the Act.

The definition is not intended to include airports, detention centres or Immigration's central office.

Item [2114] - Paragraph 4.10(1)(a)

This item amends paragraph 4.10(1)(a) to include a reference to subsection 338(7A) of the Act.

Section 338 of the Act sets out what types of decisions are MRT-reviewable decisions.

In April 2000, subsection 338(7A) was inserted in the Act to allow a small number of applicants the right to review.

Subparagraph 347(1)(b)(i) of the Act provides that an application for review of an MRT reviewable decision must be given to the tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision.

Subparagraph 347(1)(b)(i) was accordingly amended to include a reference to subsection 338(7A).

Regulation 4.10 prescribes the period within which the application must be lodged.

Therefore, the amendment clarifies that an application for review of an MRT reviewable decision under subsection 338(7A) of the Act must be given to the tribunal 21 days after the day on which the applicant receives notice of the decision.

Item [2115] - Paragraph 4.10(1)(b)

This item contains a technical amendment which inserts a reference to new subsection 338(3A) of the Act into paragraph 4.10(1)(b) of the Regulations.

New subsection 338(3A) was inserted into the Act by item 11 of Schedule 1 to the Migration Legislation Amendment (Overseas Students) Act 2000. The new subsection makes a decision under section 137L of the Act not to revoke the cancellation of a noncitizen's visa an MRTreviewable decision, provided that the non-citizen was in the migration zone when the decision was made.

Under paragraph 347(1)(b) of the Act, an application for review of an MRT-reviewable decision must be given to the Tribunal within the prescribed period.

The amendment to paragraph 4.10(1)(b) therefore prescribes the period, pursuant to paragraph 347(1)(b) of the Act, within which an application for review of an MRT-reviewable decision referred to in subsection 338(3 A) must be given to the Tribunal.

Part 2.2 - Amendments of Schedule 1

Item [2201] - Subitem 1128B (4)

This item replaces the reference to 'Skilled - Regional sponsored' with a reference to 'Skilled -Designated Area - sponsored' in subitem 1128B(4) in order to correctly refer to the new name of Subclass (Skilled - Designated Area - sponsored).

Item [2202] - Subitem 1301(1)

This item omits "1004" from subitem 1301(1). The number "1004" relates to Form 1004 (Application for Further Temporary Stay on Humanitarian Grounds). Form 1004 is no longer in use and has been withdrawn from circulation. The form was used in relation to two visa subclasses, namely Subclass 435 (Sri Lankan (Temporary)(Class TT)), which ceased on 31 July 1998, and Subclass 443 (Citizens of Former Yugoslavia (Temporary)(Class TC)), which ceased on 31 August 1998.

Item [2203] - Subparagraph 1301(3)(d)(ii)

This item clarifies the operation of subparagraph 1301(3)(d)(ii). The intention in relation to item 1301 of Schedule 1 and Part 010 of Schedule 2 to the Regulations is that "Bridging A" visas only be granted to non-citizens who hold a substantive visa when they apply for another substantive visa.

Therefore the amendment to subparagraph 1301(3)(d)(ii) of Schedule 2 requires the person to be the holder of a substantive visa at the time of his or her application for a substantive visa.

Item [2204] - Paragraph 1301 (3)(a)

This item replaces paragraph 1301(3)(e) with new paragraph 1301(3)(e) in subitem 1301(3) of Schedule 1.

The effect of the new paragraph is to ensure that an applicant Will be able to make a valid application for a Bridging A (Class WA) visa (provided that the applicant satisfies the rest of the criteria in Item 1301) if the applicant has had his or her student visa cancelled under new section 137J of the Act and that cancellation has been revoked, or a review authority has set aside a decision not to revoke that cancellation.

New section 137J of the Act relates to the automatic cancellation of a student visa where the visa holder does not satisfactorily respond to a notice sent to the holder under section 20 of the Education Services for Overseas Students Act 2000.

Item [2205] - Paragraph 1302(3)(ba)

This item clarifies the operation of paragraph 1302(3)(ba).

In order to meet the requirements for the grant of a Subclass 020 (Bridging B) visa, an applicant must be the holder of a Bridging A (Class WA) visa or a Bridging B (Class WB) visa. To hold a Bridging A (Class WA) visa or a Bridging B (Class WB) visa, the applicant for a Bridging B (Class WB) visa must have held a substantive visa, and therefore must have been immigration cleared, when they made a new substantive visa application.

Subparagraph 1302(3)(ba)(ii) of Schedule 1 to the Regulations provides that an applicant for a Bridging B (Class WB) visa must be "an eligible non-citizen referred to in subregulation 2.20(6)". However, subregulation 2.20(6) of the Regulations refers to people who have not been immigration cleared.

The amendment omits the reference to subregulation 2.20(6) in paragraph 1302(3)(ba), as an applicant for a Bridging B (Class WB) visa who satisfies subregulation 2.20(6) of the Regulations is not immigration cleared and therefore cannot have held a substantive visa.

Item [2206] - Subitem 1303(1)

Item [2207] - Subitem 1305(1)

These items omit "1004" from subitems 1303(1) and 1305(1). The number "1004" relates to Form 1004 (Application for Further Temporary Stay on Humanitarian Grounds). Form 1004 is no longer in use and has been withdrawn from circulation. The form was used in relation to two visa subclasses, namely Subclass 435 (Sri Lankan (Temporary)(Class TT)), which ceased on 31 July 1998, and Subclass 443 (Citizens of Former Yugoslavia (Temporary)(Class TC)), which ceased on 31 August 1998.

Part 2.3 - Amendments of Schedule 2

Item [2301] - Paragraph 010. 211(3)(a)

Item [2302] - Paragraph 010. 211(4)(a)

These items clarify the operation of paragraphs 010.211(3)(a) and 010.211(4)(a).

The effect of the amendments is that further Subclass 010 (Bridging A) visas will only be granted to non-citizens who held a substantive visa when they applied for another substantive visa, provided that they meet the other criteria for grant of the other visa.

Item [2303] - Paragraph 020.511 (c)

Item [2304] - Paragraph 020.512(c)

These items clarify the operation of paragraph 020.511 (c) and paragraph 020.512(c).

Clauses 020.511 and 020.512 of Schedule 2 set out the period during which a Subclass 020 (Bridging B) visa will be in effect.

Paragraphs 020.511 (c) and 020.512(c) of Schedule 2 to the Regulations permit a Subclass 020 (Bridging B) visa holder to travel to and enter Australia until a date specified by the Minister or until one of the events specified in paragraphs 020.511 (b) or 020.512(b) occurs.

The intention is that if one of the events specified in paragraph 020.511(b) or 020.512(b) occurs, the Subclass 020 (Bridging B) visa would cease to be in effect, regardless of whether the Minister had specified a later date under either subparagraph 020.511(c)(i) or 020.512(c)(i) of Schedule 2.

The amendments make it clear that the travel period of the Subclass 020 (Bridging B) visa ceases when the date passes or a specified event occurs, whichever is the earlier.

Item [2305] - Subparagraph 030.511(b)(vii)

This item contains a technical amendment, consequential to the insertion of new subparagraph 030.511(b)(viii) below.

Item [2306] - After subparagraph 030.511(b)(ii)

This item adds new subparagraph 030.511(b)(viii) as an event upon which a Subclass 030 (Bridging C) visa will cease.

The new ceasing event is when a substantive visa held by the subclass 030 (Bridging C) visa holder is cancelled.

Therefore, if a person holds a substantive visa and a Subclass 030 (Bridging C) visa, the cancellation of the substantive visa will have the effect that the Subclass 030 visa will cease. The person will then be an unlawful non-citizen and will be subject to immigration detention.

For example, an unlawful non-citizen can apply concurrently for a temporary visa and a permanent visa, and will be granted two Subclass 030 (Bridging C) visas. If the temporary visa is granted, the Subclass 030 (Bridging C) visa, granted on the basis of the application for the temporary visa, ceases to be in effect. The non-citizen will then be the holder of a temporary visa and a Subclass 030 (Bridging C) visa granted on the basis of his or her application for the permanent visa that has not yet been finally determined. Clause 03 0.5 11 does not cover the situation where the temporary visa is subsequently cancelled, the effect of which is that the person would continue to hold a Subclass 030 (Bridging Q visa, and be unable to be detained.

Item [2307] - Clause 041.511

Item [2308] - Paragraph 050.211 (1)(b)

Item [2309] - After paragraph 050.211(1)(b)

These items correct a technical error. The purpose of Part 041 of Schedule 2 to the Regulations is to provide for the situation where an unlawful non-citizen cannot or does not want to apply for a substantive visa and therefore should be considered for the grant of a Subclass 050 (Bridging (General)) visa, but no compliance officer is available.

A Subclass 041 (Bridging (Non-applicant)) visa is granted for five working days with a reporting condition 8401, requiring the holder to return to a DIMA office to be considered for the grant of a Subclass 050 (Bridging (General)) visa by a compliance officer. However, as a Subclass 050 (Bridging (General)) visa may only be granted to an unlawful non-citizen or the holder of a Subclass 050 (Bridging (General)) visa, the reporting date on the Subclass 041 (Bridging (Nonapplicant)) visa must therefore always be after the date the visa itself has ceased, which is not intended.

The amendment to clause 041.511 therefore has the effect that a Subclass 041 (Bridging (Nonapplicant)) visa is in effect for five working days after the grant or until the grant of a Subclass 050 (Bridging (General)) visa, whichever is the earlier.

There is a consequential amendment to clause 050.211 to provide for the holder of a Subclass 041 (Bridging (Non-applicant)) visa in new paragraph 050.211(c).

Item [2310] - Subclause 050j.212(1)

This item contains a technical amendment.

A reference is made in subclause 050.212(1) to new subclause 050.212(5A) so that an applicant will satisfy clause 050.212 if they meet the requirements of new subclause 050.212(5A).

New subclause 050.212(5A) is inserted into clause 050.212, below.

Item [2311] - After paragraph 050.212(4)(b)

This item inserts new paragraphs 050.212(4)(ba) and 050.212(4)(bb) into subclause 050.212(4).

The effect of the amendment is that an applicant will meet the requirements of subclause 050.212(4) if new paragraph 050.212(4)(ba) or 050.212(4)(bb) applies to him or her.

New paragraph 050.212(4)(ba) refers to the situation where an applicant has applied under new section 137K of the Act for revocation of the cancellation of his or her student visa. New paragraph 050.212(4)(bb) refers to the situation where an applicant has applied for merits review of a decision made under new section 137L of the Act not to revoke the cancellation of a visa.

New section 137K of the Act allows a non-citizen whose visa has been cancelled under new section 137J of the Act to apply for revocation of the cancellation.

New section 137L of the Act sets out whether the Minister can revoke the cancellation mentioned above on an application under new section 137K. Under new section 137L of the Act, the Minister may either make a decision to revoke or not to revoke the cancellation of a visa.

Item [2312] - Paragraph 050.212(4)(c)

This item contains a technical amendment which inserts a reference to new paragraphs 050.212(4)(ba) and 050.212(4)(bb) into paragraph 050.212(4)(c).

Paragraph 050.212(4)(c) will therefore apply to an applicant if the Minister is satisfied that:

• the applicant is going to apply under section 137K of the Act for revocation of the cancellation of their student visa; or

• the applicant will apply for merits review of a decision under new section 137L of the Act not to revoke the cancellation of their student visa.

Item [2313] - After subclause 050.212(5)

This item inserts new subclause 050.212(5A) into clause 050.212. An applicant will satisfy clause 050.212 if he or she meets the requirements of new subclause 050.212(5A).

An applicant will meet the requirements of new subclause 050.212(5A) if the applicant had his or her visa cancelled under subsection 140(1), (2) or (3) of the Act because another person had his or her visa cancelled under section 137J of the Act; and:

• the person who had his or her visa cancelled under new section 137J of the Act has applied under new section 137K of the Act for revocation of that cancellation; or

• that person has applied for merits review of a decision under new section 137L of the Act not to revoke the cancellation of the visa; or

• the Minister is satisfied that that person will make an application mentioned in the two dot points above.

New sections 137J, 137K and 137L of the Act are described above in relation to the amendments inserting new paragraphs 050.212(4)(ba) and 050.212(4)(bb).

Section 140 of the Act relates to where a person ("the first person") holds a visa, and another person ("the second person") holds a visa because of the first person holding a visa.

For example, the second person may be the first person's husband. He may hold a student visa because his wife, the first person, holds a student visa.

Section 140 operates so that if the first person's visa is cancelled, the second person's visa can also be cancelled. As a result of the amendment, the second person (the husband) would be able to be granted a Subclass 050 (Bridging (General)) visa (provided that he satisfied the rest of the criteria) if:

• his wife had applied for revocation of the cancellation of her visa; or

• his wife had applied for merits review of a decision not to revoke the cancellation of her visa; or

• the Minister was satisfied that she would apply for revocation of the cancellation or merits review of a decision not to revoke the cancellation.

Item [2314] - After clause 050.513

This item inserts new clauses 050.513A and 050.513B after clause 050.513 in Division 050.5 of Part 050. Division 050.5 relates to when a Subclass 050 (Bridging (General)) visa is in effect.

New clause 050.513A relates only to a Subclass 050 (Bridging (General)) visa that is granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied under new section 137K of the Act for revocation of the cancellation (under new section 137J) of a student visa.

The Subclass 050 (Bridging (General)) visa will come into effect on grant and will permit the holder to stay in Australia until:

• one of the events in paragraph 050.513A(b) occurs; or

• the event mentioned in paragraph 050.513A(c) occurs.

Paragraph 050.513A(c) provides for a Subclass 050 (Bridging (General)) visa to "rollover". That is, if the non-citizen's application for revocation of the cancellation of his or her student visa is unsuccessful, then the non-citizen's bridging visa will remain in effect until 7 working days after he or she is notified of the decision not to revoke the cancellation (see subparagraph 050.513A(b)(i)).

However, if the non-citizen applies for merits review of that decision, the non-citizen ,does not have to make an application for a further bridging visa - because of paragraph 050.513A(c), the bridging visa will remain in effect during the merits review period, as set out in new clause 050.513B.

The 7 working day period mentioned in subparagraph 050.513A(b)(i) is related to the cumulative 7 working day period in paragraph 4.10(1)(b) of the Regulations. That paragraph sets out the time for lodgment of applications for review of certain MRT-reviewable decisions.

New clause 050.513B relates only to a Subclass 050 (Bridging (General)) visa that is granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) who has applied for merits review of a decision made under new section 137L of the Act not to revoke the cancellation of a visa.

The Subclass 050 (Bridging (General)) visa will come into effect on grant and will permit the holder to stay in Australia until one of the events set out in paragraph 050.513B(a), 050.513B(b) or 050.513B(c) occurs.

Clause 050.517 will apply in relation to the situation where the Minister is satisfied that the noncitizen is going to make an application for revocation of a visa cancelled under new section 137J of the Act, or for merits review of a decision under new section 137L of the Act not to revoke the cancellation.

Item [2315] - After clause 050.514

This item inserts new clauses 050.514AA and 050.514AB after clause 050.514 in Division 050.5 of Part 050. Division 050.5 relates to when a Subclass 050 (Bridging (General)) visa is in effect.

New clause 050.514AA relates only to a Subclass 050 (Bridging (General)) visa that is granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) to whom subsection 140(1), (2) or (3) of the Act applies (see explanation for new subclause 050.212(5A), above), provided that the relevant non-citizen whose visa was cancelled under new section 137J of the Act has applied under new section 137K of the Act for revocation of that cancellation.

The Subclass 050 (Bridging (General)) visa will come into effect on grant and will permit the holder to stay in Australia until:

• one of the events in paragraph 050.514AA(b) occurs; or

• the event mentioned in paragraph 050.514AA(c) occurs.

The 7 working day period mentioned in subparagraph 050.514AA(b)(i) is related to the cumulative 7 working day period in paragraph 4.10(1)(b) of the Regulations. That paragraph sets out the time for lodgment of applications for review of certain MRT reviewable decisions.

Paragraph 050.514AA(c) provides for a Subclass 050 (Bridging (General)) visa to "rollover". That is, if the relevant non-citizen's application for revocation of the cancellation of his or her visa is unsuccessful, then the bridging visa of the non-citizen to whom subsection 140(1), (2) or (3) of the Act applies will remain in effect until 7 working days after the relevant non-citizen is notified of the decision not to revoke the cancellation (see subparagraph 050.514AA(b)(i)).

However, if the relevant non-citizen applies for merits review of that decision, the non-citizen to whom subsection 140(1), (2) or (3) applies does not have to make an application for a further bridging visa - because of paragraph 050.514AA(c), the bridging visa will remain in effect during the merits review period, as set out in new clause 050.514AB.

New clause 050.514AB relates only to a Subclass 050 (Bridging (General)) visa that is granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) to whom subsection 140(1), (2) or (3) of the Act applies (see explanation for new subclause 050.212(5A), above), provided that the relevant non-citizen whose visa was cancelled under new section 137J of the Act has applied for merits review of a decision under new section 137L of the Act not to revoke the cancellation.

The Subclass 050 (Bridging (General)) visa will come into effect on grant and will permit the holder to stay in Australia until one of the events set out in paragraph 050.514AB(a), 050.514AB(b) or 050.514AB(c) occurs.

Clause 050.517 will apply in relation to the situation where the Minister is satisfied that the relevant non-citizen is going to make an application for revocation of a visa cancelled under new section 137J of the Act, or for merits review of a decision under new section 137L of the Act not to revoke the cancellation.

Item [2316] - Paragraph 100.211(2)(a)

A Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999, allowed the holder to travel to and enter Australia for a period of 30 months from the date of application, and to remain in Australia until their parallel application for a permanent Subclass 100 (Spouse) visa was decided.

The Spouse (Provisional) visa was amended from 1 November 1999 to remove. the 30 month travel facility. The holder of that visa is now allowed to travel to, enter, and remain in Australia, until their application for a permanent Spouse visa is decided.

A number of Spouse (Provisional) visas granted before 1 November 1999 ceased on the expiry of the 30 month period due to the holder leaving Australia, or being outside Australia, after this period, and before a decision was made on the application for a permanent Spouse visa.

Paragraph 100.221(2)(a) sets out one of the time- of decision criteria that an applicant must meet to be eligible for the grant of a permanent Spouse visa. The current requirement of the paragraph is that an applicant be the holder of a Spouse (Provisional) visa.

This item substitutes paragraph 100.221(2)(a) with a new paragraph requiring the applicant to be either the holder of a Subclass 309 visa, or to have been the holder of a Subclass 309 visa granted before 1 November 1999 that ceased because the applicant was outside Australia at the end of the 30 month period, or because the applicant left Australia after the end of the 30 month period.

This paragraph is being amended so that an applicant whose Spouse (Provisional) visa ceased by reason of the expiry of the 30 month travel facility does not fail to meet the time of decision criteria of subclause 100.221(2).

Item [2317] - Paragraph 100.211(3)(a)

Paragraph 100.221(3)(a) sets out one of the time of decision criteria that an applicant must meet to be eligible for the grant of a permanent Subclass 100 (Spouse) visa. The current requirement of the paragraph is that an applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa.

This item substitutes paragraph 100.221(3)(a) with a new paragraph requiring the applicant to have first entered Australia as the holder of a Subclass 309 visa, and to either continue to hold that visa, or to no longer hold that visa because it was granted before 1 November 1999 and ceased to be in effect because the applicant was outside Australia at the end of the 3 0 month, or because the applicant left Australia after the end of the 3 0 month period.

Item [2318] - Paragraph 100.211(3)(b)

This item amends paragraph 100.221(3)(b) to make it easier to read by clarifying that the visa being referred to in the paragraph is the Subclass 309 visa referred to in paragraph 100.221(3)(a).

Item [2319] - Paragraph 100.211(4)(a)

Paragraph 100.221(4)(a) sets out one of the time of decision criteria that an applicant must meet to be eligible for the grant of a permanent Subclass 100 (Spouse) visa. The current requirement of the paragraph is that an applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and continues to be the holder of that visa.

This item substitutes paragraph 100.221(4)(a) with a new paragraph requiring the applicant to have first entered Australia as the holder of a Subclass 309 visa, and to either continue to hold that visa, or to no longer hold that visa because it was granted before 1

November 1999 and ceased to be in effect because the applicant was outside Australia at the end of the 30 month period, or because the applicant left Australia after the end of the 30 month period.

Item [2320] - Paragraph 100.211(4)(c)

This item amends paragraph 100.221(4)(c) to make it easier to read by clarifying that the visa being referred to in the paragraph is the Subclass 309 visa referred to in paragraph 100.221(4)(a).

Item [2321] - Clause 100.321

Clause 100.321 sets out one of the time of decision criteria that a family member of a primary applicant must meet to be eligible for the grant of the permanent Subclass 100 (Spouse) visa.

The clause currently requires that an applicant is either the holder of a Subclass 309 visa or is the holder of a Subclass 445 visa, granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 309 visa, and that other person has been granted a Subclass 100 visa.

This item substitutes clause 100.321 with a new clause requiring the applicant to be

- the holder of a Subclass 309 visa; or

- to have been the holder of a Subclass 309 visa granted before 1 November 1999 that ceased to be in effect because the applicant was outside Australia at the end of the 30 month period specified in that visa, or because the applicant left Australia after the end of the 30 month period specified in that visa; or

- to be the holder of a Subclass 445 visa

granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 309 visa, and that other person has been granted a Subclass 100 visa.

This clause is being amended so that an applicant whose Spouse (Provisional) visa ceased by reason of the expiry of the 30 month travel facility does not fail to meet the time of decision criteria of clause 100.321.

Item [2322] - Paragraph 110.221(2)(a)

A Subclass 310 (Interdependency (Provisional)) visa granted before 1 November 1999, allowed the visa holder to travel to and enter Australia for a period of 30 months from the date of application, and to remain in Australia until their parallel application for a permanent Subclass 110 (Interdependency) visa was decided.

The Interdependency (Provisional) visa was amended from 1 November 1999 to remove the 30 month travel facility. The holder of that visa is now allowed to travel to, enter, and remain in Australia, until their application for a permanent Interdependency visa is decided.

A number of Interdependency (Provisional) visas granted before 1 November 1999 ceased on the expiry of the 30 month period due to the holder leaving Australia, or being outside Australia, after this period, and before a decision was made on the application for a permanent Interdependency visa.

Paragraph 110.221(2)(a) sets out one of the time of decision criteria that an applicant must meet to be eligible for the grant of a permanent Interdependency visa. The current requirement of the paragraph is that an applicant be the holder of a Interdependency (Provisional) visa.

This item substitutes paragraph 110.221(2)(a) with a new paragraph requiring the applicant to be either the holder of a Subclass 310 visa, or to have been the holder of a Subclass 310 visa granted before 1 November 1999 that ceased because the applicant was outside Australia at the end of the 30 month period, or because the applicant left Australia after the end of the 30 month period.

This paragraph is being amended so that an applicant whose provisional Subclass 310 visa ceased by reason of the expiry of the 30 month travel facility does not fail to meet the time of decision criteria of subclause 110.221(2).

Item [2323] - Paragraph 110.221(3)(a)

Paragraph 110.221(3)(a) sets out one of the time of decision criteria that an applicant must meet to be eligible for the grant of a permanent Subclass 110 (Interdependency) visa. The current requirement of the paragraph is that an applicant first entered Australia as the holder of a Subclass 310 (Interdependency (Provisional)) visa and continues to be the holder of that visa.

This item substitutes paragraph 110.221(3)(a) with a new paragraph requiring the applicant to have first entered Australia as the holder of a Subclass 310 visa, and to either continue to hold that visa, or to no longer hold that visa because it was granted before 1 November 1999 and ceased to be in effect because the applicant was outside Australia at the end of the 30 month, or because the applicant left Australia after the end of the 30 month period.

This paragraph is being amended so that an applicant whose Interdependency (Provisional) visa ceased by reason of the expiry of the 30 month travel facility does not fail to meet the time of decision criteria of subclause 110.221(3).

Item [2324] - Paragraph 110.221(3)(b)

This item amends paragraph 110.221(3)(b) to make it easier to read by clarifying that the visa being referred to in the paragraph is the Subclass 310 visa referred to in paragraph 110.221(3)(a).

Item [2325] -Paragraph 110.221(4)(a)

Paragraph 110.221(4)(a) sets out one of the time of decision criteria that an applicant must meet to be eligible for the grant of a permanent Subclass 110 (Interdependency) visa. The current requirement of the paragraph is that an applicant first entered Australia as the holder of a Subclass 310 (Interdependency (Provisional)) visa and continues to be the holder of that visa.

This item substitutes paragraph 110.221(4)(a) with a new paragraph requiring the applicant to have first entered Australia as the holder of a Subclass 310 visa, and to either continue to hold that visa, or to no longer hold that visa because it was granted before 1 November 1999 and ceased to be in effect because the applicant was outside Australia at the end of the 30 month period, or because the applicant left Australia after the end of the 30 month period.

Item [2326] -Paragraph 110.221(4)(c)

This item amends paragraph 110.221(4)(c) to make it easier to read by clarifying that the visa being referred to in the paragraph is the Subclass 310 visa referred to in paragraph 110.221(4)(a).

Item [2327] - Clause 100.321

Clause 110.321 sets out one of the time of decision criteria that a family member of a primary applicant must meet to be eligible for the grant of the permanent Subclass 100 (Interdependency) visa.

The clause currently requires that an applicant is either the holder of Subclass 310 visa, or is the holder of a Subclass 445 visa granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 310 visa, and that other person has been granted a Subclass 110 visa.

This item substitutes clause 110.321 with a new clause requiring the applicant to be

- the holder of a Subclass 310 visa; or

- to have been the holder of a Subclass 310 visa granted before 1 November 1999 that ceased to be in effect because the applicant was outside Australia at the end of the 30 month period specified in that visa, or because the applicant left Australia after the end of the 30 month period specified in that visa; or

- to be the holder of a Subclass 445 visa

granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 310 visa, and that other person has been granted a Subclass 110 visa.

This clause is being amended so that an applicant whose Interdependency (Provisional) visa ceased by reason of the expiry of the 30 month travel facility does not fail to meet the time of decision criteria of clause 110.321.

Item [2328] - Clause 129.215

This item makes it a requirement that an applicant for a Subclass 129 (State/Territory Sponsored Business Owner) visa has been sponsored (on approved form 949) by an appropriate regional authority, at time of application. The sponsorship must be signed by an officer of the authority who is authorised to sign a sponsorship of that kind, and must bear the seal of the authority.

Prior to these amendments, applicants for a Subclass 129 visa must be sponsored at time of visa decision. At time of application, all that is required is approved form 950 (Notice of possible sponsorship).

The reason for the two step process is that when applicants apply for a Business Skills (Migrant) (Class AD) visa, they are first assessed against the criteria for the unsponsored subclasses, even where a regional authority has indicated it is willing to consider sponsoring the applicant. If the applicant fails to meet the pass mark on the business skills points test, but will do so if awarded extra points for being sponsored, the sponsorship is sought and a visa of the sponsored subclass is granted.

The reason for assessing applicants first against the unsponsored subclasses has been to prevent overuse of the sponsored subclasses. However, this has proven unnecessary with only very small numbers of visas being issued to sponsored applicants.

These regulations therefore discontinue the two step process, and make it a time of application criterion for Subclass 129 that the applicant has been sponsored.

Item [2329] - Clauses 129.227, 129.312 and 129.325

This item omits clauses 129.227, 129.312 and 129.325.

Clause 129.227 makes it a time of decision requirement for Subclass 129 (State/Territory Sponsored Business Owner) that the applicant has been sponsored. Item [2328] (above) makes this a time of application criterion, for the reasons given above. Clause 129.227 is therefore omitted, as it is unnecessary.

Clauses 129.312 and 129.325 make it a requirement for secondary applicants for Subclass 129 visas that the sponsorship of the primary applicant includes the secondary applicant, and that the sponsorship is approved by the Minister and is still in force at time of decision.

The requirement for secondary applicants to be included in the sponsorship is to be discontinued. The nature of the sponsorship is to provide advice and assistance to the primary applicant, and to take reasonable steps to monitor the progress of the business in which the primary applicant will be engaged. For this reason, it is not considered appropriate that the sponsorship should extend to the primary applicant's family members.

Item [2330] - Clause 130.213

This item makes it a requirement that an applicant for a Subclass 130 (State/Territory Sponsored Senior Executive) visa has been sponsored (on approved form 949) by an appropriate regional authority, at time of application. The sponsorship must be signed by an officer of the authority who is authorised to sign a sponsorship of that kind, and must bear the seal of the authority.

Prior to these amendments, applicants for a Subclass 130 visa must be sponsored at time of visa decision. At time of application, all that is required is approved form 950 (Notice of possible sponsorship).

These regulations therefore discontinue the two step process, and make it a time of application criterion for Subclass 130 that the applicant has been sponsored.

Item [2331] - Clause 130.221

This item corrects a technical error in clause 130.221, where the reference to clause 130.221 should be a reference to clause 130.211.

Item [2332] - Clauses 130.227, 130.312 and 130.325

This item omits clauses 130.227, 130.312 and 130.325.

Clause 130.227 makes it a time of decision requirement for Subclass 130 (State/Territory Sponsored Senior Executive) that the applicant has been sponsored. Item [2330] (above) makes this a time of application criterion, for the reasons given above. Clause 130.227 is therefore omitted as it is unnecessary.

Clauses 130.312 and 130.325 make it a requirement for secondary applicants for Subclass 130 visas that the sponsorship of the primary applicant includes the secondary applicant, and that the sponsorship is approved by the Minister and is still in force at time of decision.

Item [2333] -Part 139, heading

This item replaces the heading of Part 139 with a new heading.

Clauses 139.213 and 139.222 of Part 139 require an applicant to be sponsored by a person resident in a designated area.

'Designated Area' is defined in clause 139.111 to mean an area specified by Gazette Notice under item 6701 in Schedule 6 as a designated area.

Designated areas are provided for in the Regulations in acknowledgment of concerns about population distribution within Australia. The areas are identified by State and Territory Governments and are revised regularly.

The amendment effectively replaces the word "Regional" in the heading of Part 139 with the words "Designated Area". This reflects that a designated area under Part 139 is not limited to a regional area.

Item [2334] - Clause 442.229

Sub-subparagraph 560.222(c)(ii)(B) of Part 560 of Schedule 2 to the Regulations provides that certain students who are required to gain practical employment experience after graduation are eligible for the grant of a Subclass 560 (Student) visa, provided they meet the other criteria for grant. The practical employment experience must be necessary to obtain registration in a profession and registration in the profession must be a prerequisite for practice in that profession in their country of usual residence.

It is more appropriate that this be placed in the Subclass 442 (Occupational Trainee) visa.

Clause 442.229 in Part 442 of Schedule 2 is therefore being amended to include a reference to these students. This means they will be able to be granted a Subclass 442 (Occupational Trainee) visa instead (provided the student meets the other criteria for this Subclass).

In addition, the amendments to clause 442.229 delete the reference to "trainee".

This amendment recognises that clause 442.229 has had a restrictive operation. That is, to satisfy the clause an applicant must have been the holder of a trainee visa or a student visa as a "trainee".

'Trainee' is defined in regulation 1.03 to mean, in the case of a visa or entry permit granted before 1 February 1991, a person in respect of whom the Education Minister has approved participation in occupational training in Australia.

In practice, such approvals by the Minister have been limited to participation in religious training only.

Hence, clause 442.229 has effectively required that the applicant hold a Student visa as a religious trainee before he or she has been able to be granted a Subclass 442 (Occupational Trainee) visa.

The amendment, therefore, remedies the anachronistic nature and narrow operation of the clause by removing the reference to "trainee" and "trainee visas" and extending the ambit of clause 442.229 to encompass the students mentioned in sub-subparagraph 560.222 (c) (ii) (B).

Item [2335] - Clause 842.216

This item makes it a requirement that an applicant for a Subclass 842 (State/Territory Sponsored Business Owner) visa has been sponsored (on approved form 949) by an appropriate regional authority, at time of application. The sponsorship must be signed by an officer of the authority who is authorised to sign a sponsorship of that kind, and must bear the seal of the authority.

Prior to these amendments, applicants for a Subclass 842 visa must be sponsored at time of visa decision. At time of application, all that is required is approved form 950 (Notice of possible sponsorship).

The reason for the two step process is that when applicants apply for a Business Skills (Residence) (Class BH) visa, they are first assessed against the criteria for the unsponsored subclasses, even where a regional authority has indicated it is willing to consider sponsoring the applicant. If the applicant fails to meet the pass mark on the business skills points test, but will do so if awarded extra points for being sponsored, the sponsorship is sought and a visa of the sponsored subclass is granted.

These regulations therefore discontinue the two step process, and make it a time of application criterion for Subclass 842 that the applicant has been sponsored.

Item [2336] - Clauses 842.226 and 842.324

This item omits clauses 842.226 and 842.324.

Clause 842.226 makes it a time of decision requirement for Subclass 842 (State/Territory Sponsored Business Owner) that the applicant has been sponsored. Item [2335] (above) makes this a time of application criterion, for the reasons given above. Clause 842.226 is therefore omitted as it is unnecessary.

Clause 842.324 makes it a requirement for secondary applicants for Subclass 842 visas that the sponsorship of the primary applicant has been approved by the Minister and is still in force at time of decision.

The nature of the sponsorship is to provide advice and assistance to the primary applicant, and to take reasonable steps to monitor the progress of the business in which the-primary applicant will be engaged. For this reason, it is not considered appropriate that the sponsorship should be relevant to the eligibility of the primary applicant's family members for a Subclass 842 visa.

The requirement that the sponsorship still be in force at time of decision applies to primary applicants by virtue of clause 842.221, which provides that the primary applicant continues to satisfy certain time of application criterion, including clause 842.216 (the requirement to be sponsored).

Item [2337] - Clause 843.214

This item makes it a requirement that an applicant for a Subclass 843 (State/Territory Sponsored Senior Executive) visa has been sponsored (on approved form 949) by an appropriate regional authority, at time of application. The sponsorship must be signed by an officer of the authority who is authorised to sign a sponsorship of that kind, and must bear the seal of the authority.

Prior to these amendments, applicants for a Subclass 843 visa must be sponsored at time of visa decision. At time of application, all that is required is approved form 950 (Notice of possible sponsorship).

These regulations therefore discontinue the two step process, and make it a time of application criterion for Subclass 843 that the applicant has been sponsored.

Item [2338] - Clauses 843.226 and 843.324

This item omits clauses 843.226 and 843.324.

Clause 843.226 makes it a time of decision requirement for Subclass 843 (State/Territory Sponsored Senior Executive) that the applicant has been sponsored. Item [2337] (above) makes this a time of application criterion, for the reasons given above. Clause 843.226 is therefore omitted as it is unnecessary.

Clause 843.324 makes it a requirement for secondary applicants for Subclass 843 visas that the sponsorship of the primary applicant has been approved by the Minister and is still in force at time of decision.

The nature of the sponsorship is to provide advice and assistance to the primary applicant, and to take reasonable steps to monitor the progress of the business in which the primary applicant will be engaged. For this reason, it is not considered appropriate that the sponsorship should be relevant to the eligibility of the primary applicant's family members for a Subclass 843 visa.

The requirement that the sponsorship still be in force at time of decision applies to primary applicants by virtue of clause 843.221, which provides that the primary applicant continues to satisfy certain time of application criterion, including clause 843.214 (the requirement to be sponsored).

Part 2.4 - Amendments of Schedule 4

Item [2401] - Subclause 4013(1)

This item contains a technical amendment. The amendment inserts a reference to new subclause 4013(2A) in subclause 4013(1), consequential to the insertion of new subclause 4013(2A), below.

Item [2402] - After subclause 4013(2)

This item inserts new subclause 4013(2A) after subclause 4013(2).

New subclause 4013(2A) provides that a person is affected by a risk factor if the person previously held a visa that was cancelled under new section 137J of the Act.

Clause 4013 in Schedule 4 to the Regulations is a public interest criterion which must be satisfied by an applicant in relation to most temporary visas.

If a person is affected by a risk factor under new subclause 4013(2A), that person will not satisfy public interest criterion 4013 unless:

• their visa application is made more than 3 years after the cancellation of their student visa (see paragraph 4013(1)(a)); or

• the Minister is satisfied as to certain circumstances that justify the granting of the visa within 3 years after the cancellation.

The 3 year period mentioned above is known as an "exclusion period". Exclusion periods are intended to:

• demonstrate the seriousness with which breaches of migration or other Australian laws are viewed;

• deter people from breaching migration law; and

• maintain the integrity of migration policies.