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MIGRATION AMENDMENT REGULATIONS 2009 (NO. 12) (SLI NO 273 OF 2009)
EXPLANATORY STATEMENT
Migration Act 1958
Migration Amendment Regulations 2009 (No. 12)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy.
In particular the Regulations make the following amendments to the Principal Regulations:
· Schedule 1 amends mandatory condition 8201 to enable Subclass 675 (Medical Treatment (Short Stay)) and Subclass 685 (Medical Treatment (Long Stay)) visa holders who are under 18 years of age to engage in study or training for more than three months, where the holder has experienced a change in circumstances while in Australia and has the written permission of the Minister for Immigration and Citizenship (the Minister) because compelling and compassionate circumstances exist;
· Schedule 2 makes amendments to the Subclass 442 (Occupational Trainee) visa to allow the Minister to specify the address to which all applications must be sent and to remove limitations on the location of the applicant at the time of grant of the visa;
· Schedule 3 ensures that public interest criterion 4001 applies to sponsors and non-applicant family members as well as to the applicant;
· Schedule 4 makes clear that in order to be granted a visa on the basis of family violence, the family violence, or part of the family violence, must have occurred while the married or de facto relationship was in existence;
· Schedule 4 also re-drafts regulation 1.23 of the Principal Regulations, which sets out when a person is taken to have suffered or committed family violence, to reduce the complexity of this regulation;
· Schedule 5 exempts de facto couples who have registered their relationship under a prescribed state or territory law from the requirement that their relationship must have existed for at least 12 months; and
· Schedule 6 makes minor amendments in relation to the new sponsorship framework set up under the Migration Legislation Amendment (Worker Protection) Act 2008, which commenced on 14 September 2009.
Details of the Regulations are set out in Attachment B.
The Regulations commence on 9 November 2009.
The Office of Best Practice Regulation’s Business Cost Calculator and Assessment Checklists were used to determine that there was no compliance cost on business or impact on competition in relation to these amendments.
In relation to the amendments in Schedule 5, the Attorney-General’s Department and relevant community groups were consulted.
In relation to the amendments in all other schedules, no consultation was necessary because the amendments do not have any potential implications relating to other government departments or agencies, non-government organisations, or any other organisation or interested party.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.
In addition to subsection 504(1), the following provisions may apply:
· section 31 of the Act, which deals with classes of visa, in particular:
· subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class; and
· subsection 31(5) of the Act, which provides that a visa is of a particular class if this Act or the regulations specify that it is a visa of that class;
· subsection 40(1) of the Act which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
· section 41 of the Act, which deals with conditions on visas, in particular:
· subsection 41(1) of the Act, which provides that regulations may provide that visas, or visas of a specified class, are subject to specified conditions;
· subsection 41(2) of the Act, which provides that, without limiting subsection 41(1), the regulations may provide that a visa, or visas of a specified class, are subject to:
o a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind), while he or she remains in Australia; or
o a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing: any work; work other than specified work; or work of a specified kind; and
· subsection 41(3) of the Act, which provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection;
· section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application;
· section 45B of the Act, which deals with the amount of visa application charges, in particular:
· subsection 45B(2) of the Act, which provides that the amount of visa application charge prescribed in relation to an application may be nil;
· section 46 of the Act, which provides when an application for a visa is a valid application, in particular:
· subsection 46(1), which provides in part that an application for a visa is valid only if it is for a visa of a class specified in the application; it satisfies the criteria and requirements prescribed under section 46; any visa application charge that the regulations require has been paid; and any fees payable under the regulations have been paid;
· subsection 46(2), which provides that the regulations may provide 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), which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and
· subsection 46(4), which provides that the regulations may prescribe, without limiting subsection 46(3), the circumstances that must exist for an application for a visa of a specified class to be a valid application, how an application for a visa of a specified class must be made, 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;
· subsection 140GB(2) of the Act, which provides that the Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied; and
· subsection 140GB(4) of the Act, which provides that different criteria and different processes may be prescribed for different kinds of visa and different classes of sponsor; and
· subsection 140H(5) of the Act, which provides that the sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.
ATTACHMENT B
Details of the Migration Amendment Regulations 2009 (No. 12)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 12)
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 9 November 2009.
Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1
Regulation 3 provides that the Principal Regulations are amended as set out in Schedule 1 and that the amendments apply in relation to an application for a visa made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)) before 9 November 2009, or an application for a visa made on or after 9 November 2009.
Subsection 5(9) of the Act provides that an application is finally determined if a decision has been made by the person authorised (or delegated) to make a decision in respect of the application, and that decision is no longer subject to, or is outside of time for, merits review by the Migration Review Tribunal or the Refugee Review Tribunal.
Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2
Regulation 4 provides that the Principal Regulations are amended as set out in Schedule 2 and that the amendments apply in relation to an application for a visa made on or after 9 November 2009.
Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3
Regulation 5 provides that the Principal Regulations are amended as set out in Schedule 3 and that the amendment applies in relation to an application for a visa made on or after 9 November 2009.
Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4
Regulation 6 provides that the Principal Regulations are amended as set out in Schedule 4 and that the amendments apply in relation to an application for a visa made:
· before 9 November 2009 in circumstances where the application was not finally determined before 9 November 2009, and the applicant makes a claim of family violence (within the meaning of the Principal Regulations as amended by the Regulations) on or after 9 November 2009 but before the application is finally determined; or
· on or after 9 November 2009.
Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5
Regulation 7 provides that the Principal Regulations are amended as set out in Schedule 5 and that the amendments apply in relation to an application for a visa made on or after 9 November 2009.
Regulation 8 – Amendment of Migration Regulations 1994 – Schedule 6
Subregulations 8(1) and (2) provides that the Principal Regulations are amended as set out in Schedule 6 and that the amendments apply in relation to an application for a visa made on or after 9 November 2009 and an application for approval as a sponsor made on or after 9 November 2009.
Subregulation 8(3) provides that an approval in force under paragraph 1205(2)(a)(ii)(C)(II) of the Principal Regulations immediately before 14 September 2009 is taken to be an approval given under paragraph 1205(2)(a)(ii)(B)(II) of the Principal Regulations on 9 November 2009.
This transitional is consequential to the change in paragraph numbering made by item [40] of item [160] of Schedule 1 to the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1) and ensures that an approval in place prior to 14 September 2009 is taken to be in place on 9 November 2009.
Schedule 1 – Amendment relating to Condition 8201
Item [1] – Clause 8201
This item replaces current clause 8201 with a new clause 8201 in Schedule 8 to the Principal Regulations.
Clause 8201 currently provides that while in Australia the visa holder must not engage, for more than 3 months, in any studies or training.
New clause 8201 provides that while in Australia the visa holder must not engage, for more than 3 months, in any studies or training, except where the visa is:
· a Subclass 675 (Medical Treatment (Short Stay)) visa the holder of which is under 18, has experienced a change in circumstances while in Australia, and has the written permission of the Minister to engage for more than 3 months in any studies or training because of compelling and compassionate circumstances; or
· a Subclass 685 (Medical Treatment (Long Stay)) visa the holder of which is under 18, has experienced a change in circumstances while in Australia, and has the written permission of the Minister to engage for more than 3 months in any studies or training because of compelling or compassionate circumstances.
The effect of this amendment is to enable holders of medical treatment visas that are under the age of 18 to engage in study or training in Australia for more than 3 months when they have experienced a change in circumstances, while in Australia, and compelling and compassionate circumstances exist. Condition 8201 will remain the same for all other visa subclasses that it attaches to.
The purpose of this amendment is to provide more fair and reasonable outcomes for medical treatment visa holders, under the age of 18, who remain in Australia longer than expected due to circumstances beyond their control.
Schedule 2 – Amendments relating to Subclass 442 (Occupational Trainee) visas
Item [1] – Schedule 1, paragraphs 1208(3)(a) and (b)
This item replaces current paragraphs 1208(3)(a) and (b) with new paragraphs 1208(3)(a) and (b) in item 1208 of Schedule 1 to the Principal Regulations.
New paragraph 1208(3)(a) provides that an application, other than an application by a person seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa, may be made in or outside Australia, but not in immigration clearance.
This amendment is consequential to the amendments made by item [2] of this Schedule, whereby applications for Subclass 442 (Occupational Trainee) visas may only be made by posting the application, or delivering the application by courier service, to an address specified by the Minister in an instrument in writing.
New paragraph 1208(3)(b) provides that an applicant, other than an applicant seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa, must be in Australia to make an application in Australia.
This amendment excludes Subclass 442 (Occupational Trainee) visa applicants from the requirement of being physically located in Australia to make an application in Australia. This is consequential to the amendments made by item [2] of this Schedule, which allows the Minister to specify an address to which all applications for a Subclass 442 visa must be posted or delivered by courier service, regardless of whether the applicant is in or outside Australia at the time of application.
Item [2] – Schedule 1, after paragraph 1208(3)(bc)
This item inserts new paragraph 1208(3)(bd) in item 1208 of Schedule 1 to the Principal Regulations.
New paragraph 1208(3)(bd) provides that a person seeking to satisfy the criteria for the grant of a Subclass 442 (Occupational Trainee) visa must make the application by posting the application (with the correct pre-paid postage), or delivering the application by courier service, to an address specified by the Minister in an instrument in writing.
The effect of this amendment is that all applications for a Subclass 442 (Occupational Trainee) visa must be made by posting the application, or delivering the application by courier service, to an address specified by the Minister, regardless of where the applicant is located at the time of application. Together with new paragraph 1208(3)(b) inserted by item [1] of this Schedule, it removes the requirement that an applicant for a Subclass 422 visa must be in Australia to make an application in Australia,
The amendment ensures that there will be a single point of contact for applicants for a Subclass 442 (Occupational Trainee) visa.
Item [3] – Schedule 2, Division 442.21, note
This item amends the note to Division 442.21 in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “If the application is made outside Australia” and inserting “If the applicant is outside Australia”.
The new note advises that there are no criteria to be satisfied at the time of application for applicants who are outside Australia at the time the application was made.
This amendment ensures consistency with existing clause 442.211, which sets out the criteria that must be satisfied if the applicant is in the migration zone at the time of application. The amendment ensures that the language in the note preceding clause 442.211 is consistent with existing clause 442.211, which relates to the location of the applicant at the time of application, rather than where the application is made. It also ensures consistency with the other amendments to Part 442 made by this Schedule.
Item [4] – Schedule 2, clause 442.227
This item amends clause 442.227 in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “If the application is made in Australia and the applicant” and inserting “If the applicant is outside Australia at the time of application, and”.
The effect of this amendment is that at the time of decision an applicant seeking to satisfy the primary criteria must satisfy special return criteria 5001 and 5002 in circumstances where an applicant is outside Australia at the time of application and the applicant has previously been in Australia.
This amendment is consequential to item [2], which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy clause 442.227 if the applicant was outside Australia at the time of making the application.
Item [5] – Schedule 2, clause 442.228
This item amends clause 442.228 in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “If the application is made in the migration zone” and inserting “If the applicant is in the migration zone at the time of application”.
The effect of this amendment is that if an applicant who seeks to satisfy the primary criteria is in the migration zone at the time of application, at the time of decision the applicant must have complied substantially with the conditions that apply or have previously applied to the last of any substantive visas or bridging visas held by the applicant.
This amendment is consequential to item [2] which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy clause 442.228 if the applicant was in Australia at the time of making the application.
Item [6] – Schedule 2, 442.229(1)
This item amends subclause 442.229(1) in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “if the application is made in the migration zone” and inserting “if the applicant is in the migration zone at the time of application”.
The effect of this amendment is that applicants who are in the migration zone at the time of applying must be the holder of one of the visa subclasses listed in paragraphs 442.229(1)(a) or that the last substantive visa the applicant held was a visa of a subclass mentioned in paragraph 442.229(1)(a).
This amendment is consequential to item [2] which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy subclause 442.229(1) if the applicant was in Australia at the time of making the application.
Item [7] – Schedule 2, 442.312
This item amends clause 442.312 in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “If the application is made outside Australia” and inserting “If the applicant is outside Australia at the time of application”.
The effect of this amendment is that if a person seeking to satisfy the secondary criteria for a Subclass 442 (Occupational Trainee) visa is outside Australia at the time of application and the application is made separately from the member of the family who seeks to satisfy the primary criteria, the family member seeking to satisfy the primary criteria must be in Australia or must be expected soon to be in Australia. In addition the person seeking to satisfy the secondary criteria must intend to stay temporarily in Australia as a member of that family unit.
This amendment is consequential to item [2] which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy clause 442.312 if the applicant is outside Australia at the time of making the application.
Item [8] – Schedule 2, clause 442.324
This item amends clause 442.324 in Part 442 of Schedule 2 to the Principal Regulations by omitting the words “If the application is made outside Australia and if the applicant” and inserting “If the applicant is outside Australia at the time of application, and”.
The effect of this amendment is that at the time of decision an applicant seeking to satisfy the secondary criteria, must satisfy special return criteria 5001 and 5002 in circumstances where an applicant is outside Australia at the time of application and the applicant has previously been in Australia.
This amendment is consequential to item [2], which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy clause 442.324 if the applicant is outside Australia at the time of making the application.
Item [9] – Schedule 2, clause 442.324A
This item amends clause 442.324A in Part 442 in Schedule 2 to the Principal Regulations by omitting the words “If the application is made in the migration zone” and inserting “If the applicant is in the migration zone at the time of application”.
The effect of this amendment is that if an applicant who seeks to satisfy the secondary criteria is in the migration zone at the time of application, at the time of decision the applicant must have complied substantially with the conditions that apply or have previously applied to the last of any substantive visas or bridging visas held by the applicant.
This amendment is consequential to item [2], which provides that all applications for a Subclass 442 (Occupational Trainee) visa must be posted or delivered by courier service to an address specified by the Minister, regardless of where the applicant is located at the time of application. The amendment preserves the existing purpose of the provision, which is to ensure that an applicant must satisfy clause 442.324A if the applicant is in Australia at the time of making the application.
Item [10] – Schedule 2, Division 442.4
This item replaces current Division 442.4 with a new Division 442.4 in Part 442 of Schedule 2 to the Principal Regulations.
New clause 442.411 provides that for the grant of a Subclass 442 (Occupational Trainee) visa an applicant may be in or outside Australia, but not in immigration clearance. Currently, Division 442.4 provides that if the application is made in the migration zone, the applicant must be in the migration zone at the time of grant, and if the application is made outside Australia, the applicant must be outside Australia at the time of grant.
The purpose of this amendment is to allow greater flexibility for applicants for a Subclass 442 (Occupational Trainee) visa, as the grant of the visa can occur if the applicant is outside Australia or in Australia (but not in immigration clearance), regardless of where the applicant was at the time they lodged their application .
Schedule 3 – Amendment relating to Public Interest Criterion 4001
Item [1] –Schedule 4, Part 1, Clause 4001
This item omits each mention of ‘the applicant’ from clause 4001 of Schedule 4 to the Principal Regulations and inserts ‘the person’ in its place.
Clause 4001 of Schedule 4 to the Principal Regulations currently provides that an applicant must satisfy the Minister that they pass the character test or alternatively, that the Minister is satisfied that there is nothing to indicate that the applicant would fail the test, has decided to grant the visa despite reasonably suspecting that the applicant does not pass the test, or has decided to grant the visa despite not being satisfied that the applicant passes the character test.
Currently, Schedule 2 to the Principal Regulations also provides that, for most visa classes, eligible sponsors and each member of the family unit of the applicant, whether or not they are an applicant for a specific subclass of visa, is also a person considered to fall within the scope of public interest criterion (PIC) 4001.
The wording of PIC 4001 (in Schedule 4) currently relates to the visa applicant only and does not cater for situations where sponsors or non-applicant family members are involved in an application and are being assessed under PIC 4001.
The effect of the amendment is to align the references in Schedule 2 and Schedule 4 to those persons to whom PIC 4001 applies by deleting the reference to “the applicant” and replacing with “the person”.
Schedule 4 – Amendments relating to family violence
Item [1] – Subregulation 1.21(1), definition of non-judicially determined claim of family violence
This item omits the reference to subregulation 1.23(1A) and inserts reference to subregulations 1.23(8) and (9) of the Principal Regulations. It is consequential to the amendment in item [3] of this Schedule.
Item [2] – Subregulation 1.21(1), definition of relevant family violence
This item replaces the current definition of “relevant family violence” with a new definition.
The definition of “relevant family violence” at subregulation 1.21(1) refers to the definition located in regulation 1.23 of the Principal Regulations.
This amendment moves this definition located in regulation 1.23 into subregulation 1.21(1) of the Principal Regulations. The amendment simplifies the Principal Regulations without changing the effect.
Item [3] – Regulation 1.23
This item replaces current regulation 1.23 with a new regulation 1.23 of the Principal Regulations. Subject to the addition below, the new regulation simplifies the previous regulation, while retaining the same operation.
In addition the new regulation introduces the requirement, in new subregulations 1.23(2), 1.23(5), 1.23(7), 1.23(12) and 1.23(14), that the family violence, or part of the family violence, must have occurred when the married or de facto relationship was in existence.
This reinforces that the purpose of the family violence provisions is to ensure that visa applicants are not required to remain in a relationship where family violence is occurring.
Item [4] – Subregulation 1.24(1)
This item omits the reference to subparagraph 1.23(1A)(b)(ii) and inserts reference to paragraph 1.23(9)(c) of the Principal Regulations. It is consequential to the amendment in item [3] of this Schedule as the substance of subparagraph 1.23(1A)(b)(ii) is in new paragraph 1.23(9)(c) of the Principal Regulations.
Item [5] – Subregulation 1.25(2)
This item omits the reference to paragraph 1.23(2)(b) and inserts reference to subregulation 1.21(1) of the Principal Regulations. It is consequential to the amendments in items [2] and [3] of this Schedule as the substance of paragraph 1.23(2)(b) is in new subregulation 1.21(1) of the Principal Regulations.
Item [6] – Subregulation 1.25(3)
This item omits the reference to paragraph 1.23(2)(b) and inserts reference to subregulation 1.21(1) of the Principal Regulations. It is consequential to the amendments in items [2] and [3] of this Schedule as the substance of paragraph 1.23(2)(b) is in new subregulation 1.21(1) of the Principal Regulations.
Item [7] – Paragraph 1.26(c)
This item omits the reference to paragraph 1.23(2)(b) and inserts reference to subregulation 1.21(1) of the Principal Regulations. It is consequential to the amendments in items [2] and [3] of this Schedule as the substance of paragraph 1.23(2)(b) is in new subregulation 1.21(2) of the Principal Regulations.
Item [8] – Regulation 1.27
This item omits the reference to paragraph 1.23(1B)(b) and inserts reference to subparagraph 1.23(10)(c)(i) of the Principal Regulations. It is consequential to the amendment in item [3] of this Schedule as the substance of paragraph 1.23(1B)(b) is in new subparagraph 1.23(10)(c)(i) of the Principal Regulations.
Schedule 5 – Amendments relating to de facto relationships
Item [1] – Subregulation 2.03A(3)
This item amends subregulation 2.03A(3) of the Principal Regulations by omitting “subregulation (4)” and inserting “subregulations (4) and (5)”.
The effect of this item is that the requirement that the Minister must be satisfied that the applicant has been in a de facto relationship for at least the period of 12 months ending immediately before the date of the application, as provided in subregulation 2.03A(3) of the Principal Regulations, is now subject to regulation 2.03A(5) (see item [2] of this Schedule).
Item [2] – After subregulation 2.03A(4)
This item inserts new subregulation 2.03A(5) into the Principal Regulations to exempt certain de facto couples from the requirement that their relationship must have existed for at least twelve months as provided in subregulation 2.03A(3) of the Principal Regulations. The exemption applies if their de facto relationship is a relationship that is registered under a law of a state or territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those regulations,
Schedule 6 – Amendments relating to 400 series visas
Item [1] – Regulation 2.12BC
This item replaces a reference to paragraph 1205(3)(c) and inserts a reference to paragraph 1205(3)(ca) in regulation 2.12BC of the Principal Regulations.
This amendment is technical and consequential to the amendments made by item [7] of this Schedule as the substance of paragraph 1205(3)(c) is in new paragraph 1205(3)(ca) of Schedule 2 to the Principal Regulations.
Item [2] – After paragraph 2.72I(4)(c)
This item inserts a new paragraph 2.72I(4)(ca) in regulation 2.72I of Division 2.17 of Part 2A to the Principal Regulations.
New paragraph 2.72I(4)(ca) provides that, to approve a nomination by an occupational trainee sponsor on the basis that the occupational training is required for registration, membership or licensing in the occupation, the Minister must be satisfied that the nominated occupational training is workplace-based. A person who is identified in relation to an approved nomination made by an occupational trainee sponsor may be eligible for the Subclass 442 (Occupational Trainee) visa.
The purpose of this new nomination criterion is to provide that the occupational training must be workplace-based for a nomination to be approved. There is a similar requirement in paragraph 2.72I(5)(a), relating to occupational training to enhance skills, and paragraph 2.72I(6)(c), relating to occupational training for capacity building overseas, so this amendment ensures consistency across regulation 2.72I.
Item [3] – Paragraph 2.80(5)(a)
This item replaces current paragraph 2.80(5)(a) with a new paragraph 2.80(5)(a) in regulation 2.80 of Division 2.19 of Part 2A to the Principal Regulations.
The effect of this item is to add subparagraph 2.80(5)(a)(i), which provides that if the primary sponsored person or secondary sponsored person holds a Subclass 416 (Special Program) visa, the obligation to pay travel costs starts on the day on which the person is granted the visa. The terms “primary sponsored person” and “secondary sponsored person” are defined in regulation 2.57 of Division 2.11 of Part 2A of the Principal Regulations.
New subparagraph 2.80(5)(a)(ii) is substantively the same as current paragraph 2.80(5)(a) but excludes the reference to the Subclass 416 (Special Program) visa. It provides that if the primary sponsored person or secondary sponsored person holds a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa, the obligation to pay travel costs starts on the day on which the Minister approves a nomination identifying the primary sponsored person or, if the primary sponsored person does not hold the visa on the day the Minister approves the nomination, on the day the primary sponsored person is granted the visa on the basis of the approved nomination.
The purpose of new paragraph 2.80(5)(a) is to ensure that the start date of the obligation is applicable where the sponsored person holds a Subclass 416 visa. Current paragraph 2.80(5)(a) is not applicable where the sponsored person holds a Subclass 416 visa, because an applicant for this visa is not required to be nominated by the approved sponsor to be eligible for grant. The amendment ensures that the obligation to pay travel costs starts when a primary sponsored person is granted a Subclass 416 visa.
Item [4] – Subparagraph 2.85(4)(a)(ii)
This item inserts the words “a Subclass 421 (Sport) visa,” into subparagraph 2.85(4)(a)(ii) in regulation 2.85 of Division 2.19 of Part 2A to the Principal Regulations.
The effect of inserting a reference to the Subclass 421 (Sport) visa is that the start date for the obligation to secure an offer of a reasonable standard of accommodation is applicable where the sponsored person holds a Subclass 421 (Sport) visa. This a technical amendment to ensure that the obligation commences in relation to approved sponsors of Subclass 421 visa holders in the same way that it commences for other approved sponsors that are subject to this obligation.
Item [5] – Schedule 1, sub-subparagraph 1205(2)(a)(ii)(B)
This item replaces current sub-subparagraph 1205(2)(a)(ii)(B) with a new sub-subparagraph 1205(2)(a)(ii)(B) in item 1205 of Schedule 1 to the Principal Regulations.
The amendment makes a technical correction to clarify that an applicant who has been identified in a nomination by an approved sponsor who is funded wholly or in part by the Commonwealth, and is approved by the Secretary, will not have to pay a visa application charge.
Item [6] – Schedule 1, paragraph 1205(3)(ba)
This item omits each mention of “a Gazette Notice” and inserts “an instrument in writing” in paragraph 1205(3)(ba) of item 1205 of Schedule 1 to the Principal Regulations.
The purpose of this amendment is to update references to “Gazette Notice” to “instrument tin writing”. The Legislative Instruments Act 2003 establishes that a legislative instrument must be registered on the Federal Register of Legislative Instruments (FRLI) and is no longer required to be published in a Gazette Notice.
Item [7] – Schedule 1, paragraph 1205(3)(c) including the note
This item replaces current paragraph 1205(3)(c) with a new paragraph 1205(3)(c) and new paragraph 1205(3)(ca) and a note in item 1205 of Schedule 1 to the Principal Regulations.
New paragraph 1205(3)(c) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 420 (Entertainment) visa must provide completed form 1379 with their application. Form 1379 is the form that must be used for a nomination that identifies a holder of, or an applicant or proposed applicant for, a Subclass 420 (Entertainment) visa. Subregulation 2.73B(6) of the Principal Regulations provides the method for making a nomination for a Subclass 420 (Entertainment) visa.
New paragraph 1205(3)(ca) provides that an applicant seeking to satisfy the criteria for the grant of a Subclass 420 (Entertainment) visa must make the application by posting the application (with the correct pre-paid postage), delivering the application by courier service or otherwise by hand, or faxing the application to the address or fax number specified by the Minister in an instrument in writing.
The purpose of these amendments is to ensure that all applicants must apply for a Subclass 420 visa in the manner specified in paragraph 1205(3)(ca), while only primary applicants for a Subclass 420 visa must provide completed form 1379 with their application.
Immediately after new paragraph 1205(3)(ca) there appears a note, which differs from the current note by changing the reference to “paragraph 1205(3)(c)” to “paragraph 1205(3)(ca)”. This amendment is consequential to the other amendments made by this item.
Item [8] – Schedule 1, paragraph 1205(3)(ca)
This item re-letters existing paragraph 1205(3)(ca) as paragraph 1205(3)(cb) in item 1205 of Schedule 1 to the Principal Regulations.
This amendment is technical and consequential to the amendments made by item [7] of this Schedule as a new paragraph 1205(3)(ca) of Schedule 1 to the Principal Regulations is inserted.
Item [9] – Schedule 1, paragraph 1205(3)(cb)
This item re-letters existing paragraph 1205(3)(cb) as paragraph 1205(3)(cc) in item 1205 of Schedule 1 to the Principal Regulations.
This amendment is technical and consequential to the amendments made by item [7] and item [8] of this Schedule as a new paragraph 1205(3)(cb) of Schedule 1 to the Principal Regulations is inserted.
Item [10] – Schedule 1, subparagraph 1223A(3)(b)(ii)
This item omits the word “spouse” and inserts the words “spouse, de facto partner” in subparagraph 1223A(3)(b)(ii) in Schedule 1 of the Principal Regulations.
This amendment is to allow the de facto partner of a primary applicant to apply for a Subclass 456 (Business (Short Stay)) visa at the same time and place as, and combined with, the primary application. This amendment is to ensure paragraph 1223A(3)(b)(ii) is as it was prior to 14 September 2009.