Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MIGRATION AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 57

STATUTORY RULES 2003 No. 57

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2003 (No. 1)

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.

In addition, the following provisions may apply:

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

•       subsection 46(2) of the Act provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations, the application is taken to have been validly made;

•       subsection 46(3) of the Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and

•       subsection 46(4) of the Act provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, and how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made.

The purpose of the Regulations is to amend the requirements for valid applications and visa grants in respect of the Work and Holiday visa, as a result of recent bilateral agreement negotiations.

The Regulations effect changes to the Migration Regulations 1994 to:

•       amend the requirements for making a valid Work and Holiday (Temporary) (Class US) visa application by requiring applicants to hold a valid passport issued by a foreign country specified in a Gazette Notice, at the time of lodging a Class US visa application;

•       remove the requirement that a person have certain work experience to be granted a Subclass 462 (Work and Holiday) visa.

Details of the Regulations are set out in the attachment.

The Regulations commence on gazettal.

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2003 (No. 1).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on gazettal.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 amends the Migration Regulations 1994 (the Migration Regulations).

Schedule 1 - Amendments

Item [1] - Schedule 1, paragraph 1224A(3)(a)

This item substitutes paragraph 1224A(3)(a) of item 1224A of Schedule 1 to the Migration Regulations with new paragraphs 1224A(3)(a) and (aa). Item 1224A of Schedule 1 to the Migration Regulations sets out the requirements for making a valid application for a Work and Holiday (Temporary) (Class US) visa (Work and Holiday visa).

New paragraph 1224A(3)(a) inserts a requirement that an applicant for a Work and Holiday visa must hold a valid passport issued by a foreign country specified in a Gazette Notice.

This requirement is in Part 462 of Schedule 2 to the Migration Regulations so that a Subclass 462 (Work and Holiday) visa cannot be granted if this criterion is not met at the time of decision to grant the visa. This amendment inserts the same requirement into item 1224A of Schedule 1 to the Migration Regulations so that an applicant cannot make a valid application for the Work and Holiday visa without meeting this requirement.

New paragraph 1224(3)(aa) sets out where and how an application for a Work and Holiday visa must be made. The amendment allows applications from particular foreign countries to be directed to a particular office or particular offices for processing. The addresses specified in the Gazette Notice may be in Australia.

Item [2]- Schedule 2, clause 462.111, definition of usual occupation

This item omits the definition of usual occupation in Part 462 of Schedule 2 to the Migration Regulations. Part 462 sets out the criteria to be satisfied for the grant of a Subclass 462 (Work and Holiday) visa.

This amendment is consequential to an amendment made by item [6] of these Regulations that removes the requirement for applicants to have work experience in their usual occupation from the criteria to be met for the grant of a Subclass 462 (Work and Holiday) visa.

Item [3] - Schedule 2, clauses 462.211 and 462.212

This item makes a consequential amendment to substitute clauses 462.211 and 462.212 in Part 462 of Schedule 2 to the Migration Regulations with new clause 462.211. The effect of this is to omit paragraph 462.211 (c) and clause 462.212.

Paragraph 462.211(c) requires an applicant for a Work and Holiday visa to hold a valid passport issued by a foreign country mentioned in a Gazette Notice in order to meet the criteria to be satisfied at time of application for the grant of the visa.

Item [1] of these Regulations makes an amendment to paragraph 1224A(3)(a) of Schedule 1 to the Migration Regulations to provide that an applicant for this visa must meet this same requirement at the time of making a valid application for the visa.

It is therefore unnecessary to retain this requirement in clause 462.211 in Schedule 2 to the Migration Regulations as a criterion to be met at time of application for the grant of the visa.

Clause 462.212 requires that in order to meet the criteria to be satisfied at time of application for the grant of a Subclass 462 (Work and Holiday) visa, certain applicants must have made an application in a particular foreign country specified in a Gazette Notice while other applicants could have made the application in any foreign country.

Item [1] of these Regulations makes amendments to insert new paragraph 1224A(3)(aa) into Schedule 1 to the Migration Regulations to provide that all applications for this visa must be made at the relevant address specified in a Gazette Notice in order to make a valid application.

It is therefore unnecessary to set out where an application must be made in clause 462.212 in Schedule 2 to the Migration Regulation in the criteria to be met at time of application for the grant of the visa.

This requirement is moved from Part 462 of Schedule 2 to item 1224A in Schedule 1 in order to be consistent with similar requirements in the Migration Regulations that require applications to be made at a certain location in order to make a valid visa application.

Item [4] - Schedule 2, clause 462.216

This item makes a consequential amendment to omit the references to paragraphs 462.212(a) and 462.212(b) in clause 462.216 of Part 462 of Schedule 2 to the Migration Regulations and replace them with a reference to new paragraph 1224A(3)(a) of Schedule 1.

Paragraphs 462.212(a) and (b) set out where applicants must have made their application for the Work and Holiday visa.

Item [3] of these Regulations omits clause 462.212 in its entirety from Part 462 of Schedule 2 and item [1] inserts new paragraphs 1224A(3)(a) and (aa) into Schedule 1 to provide where and how an applicant must make an application for the visa. Consequently, the reference to clause 462.212 is omitted from clause 462.216 and replaced with a reference to paragraph 1224A(3)(a).

Item [5] - Schedule 2, paragraph 462.221(a)

This item makes a consequential amendment to substitute paragraph 462.221 (a) in Part 462 of Schedule 2 to the Migration Regulations with new paragraphs 462.221(a) and (aa). The effect of this is to omit the reference to paragraph 462.211(c) in paragraph 462.221(a) and insert new paragraph 462.221(aa).

Clause 462.221 requires the applicant to continue to satisfy the criteria in the provisions mentioned in that clause.

Paragraph 462.211(c) requires an applicant for a Work and Holiday visa to hold a valid passport issued by a foreign country mentioned in a Gazette Notice.

Item [3] of these Regulations omits paragraph 462.211(c) from Part 462 of Schedule 2 and item [1] inserts this requirement into paragraph 1224A(3)(a) in Schedule 1. Consequently, this item omits the reference to paragraph 462.211(c) from paragraph 462.221 (a) and replaces it with a reference to new paragraph 1224A(3)(a) in new paragraph 462.221(aa).

The reference to new paragraph 1224A(3)(a) is inserted into new paragraph 462.221(aa), rather than paragraph 462.221(a), in order to separate references to Schedule 1 and Schedule 2 provisions.

Item [6] - Schedule 2, paragraph 462.221(d)

This item omits paragraph 462.221(d) from Part 462 of Schedule 2 to the Migration Regulations.

Paragraph 462.221 (d) requires the applicant to have been employed in an occupation that is the applicant's usual occupation and for which, in Australia, a diploma or degree is required.

It is no longer intended that applicants be required to have work experience in their usual occupation to meet the criteria for the grant of a Subclass 462 (Work and Holiday) visa.