EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 133

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment Regulations 2010 (No. 6)

 

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 the regulations may be made pursuant to the provisions of the Act in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to enable a more targeted skilled occupation list to be specified by the Minister under the definition of “skilled occupation”; allow applications for certain General Skilled Migration visas to be made on or after commencement; and to transition from the use of the outdated Australian Standard Classification of Occupations (ASCO) to the use of the current Australian and New Zealand Standard Classification of Occupations (ANZSCO) in relevant skilled migration programs.

 

In particular, the Regulations make amendments to the Principal Regulations to:

·        extend the definition of “skilled occupation” to allow the Minister to specify in an instrument in writing occupations that apply to different classes of persons including that an occupation is a skilled occupation for a person who is nominated by a state or territory government agency (state agency);

·        require applicants for certain General Skilled Migration visas to be nominated by a state agency or to be sponsored by an eligible person in order to make a valid application to align with the relevant changes to the definition of “skilled occupation”;

·        remove the changes that commenced on 8 May 2010 to allow applicants seeking to satisfy the primary criteria for a Subclass 175 (Skilled – Independent), Subclass 176 (Skilled – Sponsored) or Subclass 475 (Skilled – Regional Sponsored) visa, that allow for the grant of a visa outside of Australia, to be able to make a valid visa application on or after commencement of the Regulations;

·        insert definitions of ASCO and ANZSCO and transition from the use of ASCO to ANZSCO in nomination criteria relating to the Subclass 442 (Occupational Trainee) and Subclass 457 (Business (Long Stay)) visas; and

·        enable the Minister to refund the fee for nomination for the Subclass 457 – (Business (Long Stay)) visa where on or after 1 July 2010 the person nominates an occupation by reference to an ASCO code and withdraws the nomination for that reason before a decision is made.

Details of the Regulations are set out in Attachment B.

 

The Regulations commence on 1 July 2010.

In relation to items [1] – [3], [10] – [29], [56] and [75] of Schedule 1 to the Regulations, the Office of Best Practice Regulation advised that because the Regulations are a consequence of the new approach adopted by the Australian Bureau of Statistics for classifying occupations, no regulation impact statement or business cost calculator report was required.

 

In relation to the above items of Schedule 1 to the Regulations, the following agencies or bodies were consulted about the introduction of the Australian and New Zealand Standard Classification of Occupations (the ANZSCO) in skilled visa programs: the Australian Bureau of Statistics, the Department of Education, Employment and Workplace Relations, the Department of Infrastructure, Transport, Regional Development and Local Government, and skills assessing authorities. State and Territory governments were also consulted at the Commonwealth State Working Party on Skilled Migration (CSWPSM) forum. This included the Australian Capital Territory Chief Minister’s Department, the New South Wales Department of State and Regional Development, the Northern Territory Department of Business and Employment, the Queensland Department of Employment, Economic Development and Innovation, the Tasmanian Department of Economic Development, Tourism and the Arts, and the South Australian Department of Trade and Economic Development.

In relation to the other items of Schedule 1 to the Regulations, the Office of Best Practice Regulation’s Preliminary Assessment Checklist was used to determine that there will be no compliance cost on business and no other impacts on business and individuals or the economy.

In relation to the other items, the following agencies or bodies were consulted about the introduction of the new Skilled Occupation List for the General Skilled Migration program: the Department of Innovation, Industry, Science and Research, the Department of the Prime Minister and Cabinet, the Treasury, the Department of Finance and Deregulation, the Department of Agriculture, Fisheries and Forestry, the Attorney-General’s Department, the Department of Education, Employment and Workplace Relations, the Department of Foreign Affairs and Trade, the Department of Health and Ageing, the Department of Resources, Energy and Tourism, the Australian Trade Commission, and skills assessing authorities.

 

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.

 

In addition, the following provisions may apply:

 

·        section 31 of the Act, which deals with classes of visas, 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;

·        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;

·        subsection 41(1) of the Act, which provides that the 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:

(a) 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), while he or she remains in Australia; or

(b) 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;

·        section 46 of the Act, which provides when an application for a visa is a valid application. In particular:

o       subsection 46(1) of the Act, 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 and it satisfies the criteria and requirements prescribed under section 46;

o       subsection 46(3) of the Act, 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

o       subsection 46(4) of the Act, 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 93(1) of the Act, which provides that the Minister shall make an assessment by giving the visa applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant; and

·        section 140GB of the Act, which provides that the Minister must approve nominations. In particular:

o       subsection 140GB(2) of the Act, which provides that: the Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied;

o       subsection 140GB(3) of the Act, which provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination; and

o       subsection 140GB(4) of the Act, which provides that: different criteria and different processes may be prescribed for different kinds of visa (however described); and different classes in relation to which a person may be approved as a sponsor.

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2010 (No. 6)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2010 (No. 6).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 July 2010.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

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

 

Subregulation 3(2) provides that the amendments made by items [4], [8], [9], [30] to [47], [49], [54], [57], [60], [61], [63], [65] to [67], [69], [71], [73] and [74] of Schedule 1 apply in relation to an application for a visa made on or after 1 July 2010.

 

Subregulation 3(3) provides that the amendments made by items [12] to [27] of Schedule 1 apply in relation to a nomination that is: (a) made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)), before 1 July 2010; or (b) made on or after 1 July 2010.

 

Subregulation 3(4) provides that the amendments made by items [5], [6], [7], [10], [56] and [75] of Schedule 1 apply in relation to a visa application that is: (a) made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2010; or made on or after 1 July 2010.

 

The amendments made by items [1] to [3], [11], [28] and [29] apply on and after 1 July 2010.

 

In particular, items [1] and [2] inserts new definitions in the Principal Regulations that relate to the definition of “trade qualification” as amended by item [10], and the nomination regime for Subclass 457 (Business (Long Stay)) visas as amended by items [12] – [27]. Item [10] applies in accordance with subregulation 3(4), and items [12] – [27] apply in accordance with subregulation 3(3).

 

The amendments made by items [3] and [11] omit definitions from the Principal Regulations and apply on and after 1 July 2010.

 

The amendments made by items [28] and [29] apply on and after 1 July 2010 in relation to nominations. Item [29] allows the Minister to refund the nomination fee in certain circumstances. Item [28] is a minor consequential amendment.

 

Schedule 1 – Amendments

Item [1] – Regulation 1.03, after definition of airline positioning crew member

This item inserts a new definition of “ANZSCO” after the definition of “airline positioning crew member” in regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations.

The new definition provides that the “ANZSCO” means the Australian and New Zealand Standard Classification of Occupations:

·        published by the Australian Bureau of Statistics (ABS); and

·        as current on 1 July 2010.

The note to the definition of “ANZSCO” explains that at the time this definition commenced, the standard was available at the ABS website (http://www.abs.gov.au).

The ANZSCO published by the ABS is fixed to the standard current on 1 July 2010, namely, the Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1.

The purpose of this amendment is to provide for the new ANZSCO definition to support the transition from the use of the Australian Standard Classification of Occupations (ASCO) to the more contemporary Australian and New Zealand Standard Classification of Occupations (ANZSCO).

Item [2] – Regulation 1.03, after definition of Arts Minister

This item inserts a new definition of “ASCO” after the definition of “Arts Minister” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

The new definition provides that the “ASCO” means the Australian Standard Classification of Occupations, Second Edition, published by the ABS on 31 July 1997.

The note to the definition of “ASCO” explains that at the time this definition commenced, the standard was available at the ABS website (http://www.abs.gov.au).

The purpose of this amendment is to provide for a new definition of “ASCO” rather than “Australian Standard Classification of Occupations” in regulation 1.03 to ensure the definition is consistent with the new “ANZSCO” definition that is an acronym.

Item [3] – Regulation 1.03, definition of Australian Standard Classification of Occupations, including the note

This item omits the definition of “Australian Standard Classification of Occupations”, including the note in regulation 1.03 in Division 1.2 of Part 1 of the Principal Regulations.

This amendment is consequential to the insertion of the new definition of “ASCO” in item [2] of the Schedule.

Item [4] – Regulation 1.03, after definition of designated APEC economy

This item inserts a definition of “designated area” and a note after the definition of “designated APEC economy” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

The definition provides that “designated area” means an area specified by the Minister in an instrument in writing for item 6701 of Schedule 6 as a designated area. Item 6701 of Schedule 6 to the Principal Regulations sets out the number of points that may be allocated to an applicant for certain skilled visas where the sponsor of the applicant has been resident in one or more designated areas throughout the period of two years immediately before Immigration receives the relevant sponsorship.

The note explains that an area may be specified to be a designated area for a provision of the Principal Regulations in addition to item 6701 of Schedule 6 to the Principal Regulations.

The term “designated area” is used across the Principal Regulations and is defined for the purposes of Part 106, Part 139, Part 487, Part 496, Part 863, Part 883 and Part 887 of Schedule 2 to the Principal Regulations, generally as an area specified by the Minister in an instrument in writing under item 6701 of Schedule 6 to the Principal Regulations as a designated area.

This item is consequential to the amendments made by items [40] and [42] of the Schedule, which introduce the term “designated area” to item 1228 and item 1229 of Schedule 1 to the Principal Regulations.

The purpose of including the definition of “designated area” in regulation 1.03, rather than in various items in Schedule 1 and Parts of Schedule 2 to the Principal Regulations, is to reduce the size and complexity of the Principal Regulations.

Item [5] – Regulation 1.03, definition of migration occupation in demand

This item substitutes the definition of “migration occupation in demand” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

The new definition provides that a “migration occupation in demand” has the meaning given by regulation 1.15H.

This amendment is consequential to the amendment made by item [7] of the Schedule, which inserts regulation 1.15H to provide for the meaning of “migration occupation in demand”.

Item [6] – Regulation 1.03, definition of skilled occupation

This item substitutes the definition of “skilled occupation” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations with a new definition of “skilled occupation”.

The new definition provides that a “skilled occupation” has the meaning given by regulation 1.15I.

This amendment is consequential to the amendment made by item [7] of the Schedule, which inserts regulation 1.15I to provide for the meaning of “skilled occupation”.

Item [7] – After regulation 1.15G

This item inserts regulations 1.15H and 1.15I in Division 1.2 of Part 1 of the Principal Regulations.

New regulation 1.15H provides for the meaning of “migration occupation in demand”.

New subregulation 1.15H(1) provides that a “migration occupation in demand”, in relation to a person, means a skilled occupation of a kind that:

·        is specified by the Minister in an instrument in writing to be a migration occupation in demand; and

·        is applicable to the person in accordance with the specification.

New subregulation 1.15H(2) provides that the Minister may specify in the instrument that an occupation is a migration occupation in demand for a class of persons.

The term “migration occupation in demand” is used in Schedule 6B to the Principal Regulations, which sets out the number of points that are given for certain qualifications that may be satisfied by applicants for General Skilled Migration visas.

This amendment clarifies that a skilled occupation is only a “migration occupation in demand” in relation to a person, if the person falls within a class or classes of person that is specified in an instrument in writing for that skilled occupation. The purpose of this amendment is to ensure consistency with the new meaning of “skilled occupation” in regulation 1.15I, which is inserted by this item.

New regulation 1.15I provides for the meaning of “skilled occupation”.

New subregulation 1.15I(1) provides that a “skilled occupation”, in relation to a person, means an occupation of a kind that:

·        is specified by the Minister in an instrument in writing to be a skilled occupation; and

·        for which a number of points specified in the instrument are available; and

·        is applicable to the person in accordance with the specification.

 

New subregulation 1.15I(2) provides that, without limiting subregulation 1.15I(1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:

·        that an occupation is a skilled occupation for a class of persons;

·        that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.

The term “skilled occupation” is used across the Principal Regulations in the context of the General Skilled Migration visa program. A “General Skilled Migration visa” is defined in regulation 1.03 of the Principal Regulations to mean a Subclass 175, 176, 475, 476, 485, 487, 885, 886 or 887 visa, granted at any time.

This amendment clarifies that a skilled occupation is only a “skilled occupation” in relation to a person, if the occupation is of a kind that is applicable to the person as specified in the instrument in writing. The instrument may specify (among other things) that an occupation is a skilled occupation for a class of persons, or for a person who is nominated by a State or Territory government agency.

The purpose of this amendment is firstly to allow a new, more targeted list of skilled occupations to be developed, while also allowing the current list of skilled occupations to be preserved as a transitional arrangement for certain cohorts of General Skilled Migration visa applicants. For example, the current list of skilled occupations may be retained in a new instrument for applicants who apply for a General Skilled Migration visa before the commencement of the Regulations. The amendment also provides flexibility to effectively manage the General Skilled Migration program in the future by allowing different lists of skilled occupations to be specified for different cohorts of applicants.

Secondly, the amendment allows a separate list of skilled occupations to be developed for applicants for a General Skilled Migration visa who are nominated by a State or Territory government agency. This amendment is part of the broader policy objective to ensure that there is flexibility for individual state and territory agencies to nominate applicants with skills in particular occupations, recognising that each state and territory has different skills requirements.

Item [8] – Subregulation 1.20(3)

This item inserts “(not mentioned in subregulation (3A))” after “A person” in subregulation 1.20(3) of Division 1.4 of Part 1 of the Principal Regulations.

The previous subregulation 1.20(3) provided that a person who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and giving this form to the Minister not later than a reasonable period after the Minister approves the person as a sponsor. Previous subregulation 1.20(1) provided that the “sponsor” of an applicant for a visa is a person who undertakes the obligations stated in subregulation 1.20(2) in relation to the applicant.

This item excludes from subregulation 1.20(3) a person who is mentioned in new subregulation 1.20(3A), which is inserted by item [9] of the Schedule.

This item ensures that a person who is a sponsor of an applicant for a class of visa mentioned in new subregulation 1.20(3A) does not also need to satisfy the conflicting requirement in subregulation 1.20(3).

Item [9] – After subregulation 1.20(3)

This item inserts a new subregulation 1.20(3A) in Division 1.4 of Part 1 of the Principal Regulations.

New subregulation 1.20(3A) provides that a person who is a sponsor of an applicant for one of the following visas must complete the relevant approved form and give it to the Minister prior to the Minister approving the person as a sponsor:

·        Skilled (Migrant) (Class VE) visa;

·        Skilled (Residence) (Class VB) visa;

·        Skilled (Provisional) (Class VF) visa; and

·        Skilled (Provisional) (Class VC) visa.

This amendment clarifies that a person who is a sponsor of an applicant for a General Skilled Migration visa must give the relevant approved form to the Minister prior to the Minister approving the person as a sponsor. This differs from the previous requirement at subregulation 1.20(3), which allowed a person who is a sponsor of an applicant for a visa to give the relevant approved form to the Minister either before or after the Minister approved the person as a sponsor (but not later than a reasonable period after the Minister approved the person as a sponsor).

This amendment is consistent with the amendments in items [30], [32] to [34], [38] and [40] to [42] of the Schedule to the requirements for making a valid application for a General Skilled Migration visa. These amendments require a person to enter into the sponsorship on the relevant sponsorship form (Form 1277 (Internet) or Form 1277) in order for the person being sponsored to be able to make a valid application for the visa. The Minister would then approve the person as a sponsor at the time of the Minister’s decision on the visa application.

Item [10] – Subregulation 2.26A(6), definition of trade qualification, paragraph (b)

This item substitutes paragraph (b) and inserts a new paragraph (c) in the definition of “trade qualification” in subregulation 2.26A(6) in Division 2.6 of Part 2 of the Principal Regulations.

Paragraph (b) previously provided that “trade qualification” means a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the Australian Standard Classification of Occupations that is:

·        published by AusInfo; and

·        current when this definition commences.

New paragraph (b) provides that “trade qualification” means a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO.

The meaning of “trade qualification” in new paragraph (b) is consistent with the previous paragraph (b). The former reference to the “Australian Standard Classification of Occupations” is not included in the new paragraph as a result of the new definition of “ASCO” in item [2] of the Schedule and this new definition provides the agency who publishes the standard and the relevant date.

New paragraph (c) provides that “trade qualification” also means a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in the ANZSCO.

New paragraph (c) allows qualifications of at least the Certificate III level for a skilled occupation in Major Group 3 in the ANZSCO to be recognised as a “trade qualification” for the purpose of the Principal Regulations.

The purpose of the amendment is to provide for the relevant qualification in ASCO and ANZSCO.

Item [11] – Subregulation 2.57(1), definition of ASCO

This item omits the definition of ASCO from subregulation 2.57(1) in Division 2.11 of Part 2A of the Principal Regulations.

This amendment is consequential to the amendment to the definition of “ASCO” made in item [2] of the Schedule and ensures there is a single definition for the Principal Regulations.

Item [12] – Subregulation 2.72(8)

This item omits “The” and inserts “If the nomination was made before 1 July 2010 – the” in subregulation 2.72(8) in Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that for a nomination made before 1 July 2010 the Minister is satisfied that the person has provided the information in subclause 2.72(8) as part of the nomination.

The purpose of the amendment is to preserve the previous nomination framework for Subclass 457 (Business (Long Stay)) visa nominations made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

Item [13] – After subregulation 2.72(8)

This item inserts a new subregulation 2.72(8A) in Division 2.17 of Part 2A of the Principal Regulations.

New subregulation 2.72(8A) provides that if the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

·        if there is a 6-digit ANZSCO code for the nominated occupation – the name of the occupation and the corresponding 6 digit ANZSCO code;

·        if there is no 6-digit ANZSCO code for the nominated occupation and the person is a standard business sponsor – the name of the occupation and the corresponding 6-digit code, as they are specified in the instrument in writing made for paragraph 2.72(10)(aa);

·        if there is no 6-digit ANZSCO code for the nominated occupation and the person is a party to a work agreement – the name of the occupation and the corresponding 6-digit code (if any), as they are specified in the work agreement;

·        the location or locations at which the nominated occupation is to be carried out.

This purpose of this amendment is to provide that persons seeking to satisfy the criteria for approval of a nomination for a Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 must include in the nomination the name of the occupation, and the corresponding 6-digit code (if any) specified. The amendment also provides that the nomination must also include the location or locations at which the nominated occupation is to be carried out.

Item [14] – Paragraph 2.72(10)(a)

This item omits “the nominated” and inserts “if the nomination was made before 1 July 2010 – the nominated” in paragraph 2.72(10)(a) in Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that if the person is a standard business sponsor – the Minister must be satisfied that if the nomination was made before 1 July 2010 – the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph (2.72(10)(a)).

The purpose of the amendment is to preserve the previous nomination framework for a Subclass 457 (Business (Long Stay)) visa nomination made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

Item [15] – After paragraph 2.72(10)(a)

This item inserts new paragraph 2.72(10)(aa) after paragraph 2.72(10)(a) in Division 2.17 of Part 2A of the Principal Regulations.

New paragraph 2.72(10)(aa) provides that if the person is a standard business sponsor – the Minister is satisfied that if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph (2.72(10)(aa)).

The purpose of this amendment is to provide that if the person is a standard business sponsor, the Minister must be satisfied that for a nomination made on or after 1 July 2010, the nominated occupation and corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing made for this paragraph (2.72(10)(aa)).

Item [16] – Paragraph 2.72(10)(b)

This item omits “paragraph (a)” and inserts “paragraph (a) or (aa)” in paragraph 2.72(10)(b) in Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that if the person is a standard business sponsor – the Minister must be satisfied that if required by the instrument mentioned in paragraph 2.72(10)(a) or (aa) – the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph (2.72(10)(b)).

The purpose of this amendment to ensure that a nomination for a Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 is subject to similar criteria as a nomination made before 1 July  2010.

Item [17] – Paragraph 2.72(10)(d)

This item omits “the person has certified” and inserts “if the nomination was made before 1 July 2010 – the person has certified” in paragraph 2.72(10)(d) in Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that if the person is a standard business sponsor – the Minister is satisfied that if the nomination was made before 1 July 2010 – the person has certified as part of the nomination, in writing, the criteria specified in subparagraphs 2.72(10)(d)(i) to (iv).

The purpose of the amendment is to preserve the previous nomination framework for a Subclass 457 (Business (Long Stay)) visa nomination made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

Item [18] – Subparagraph 2.72(10)(d)(i)

This item omits “the duties of the position include a significant majority of the duties” and inserts “the tasks of the position include a significant majority of the tasks” in subparagraph 2.72(10)(d)(i) in Division 2.17 of Part 2A of the Principal Regulations.

The purpose of this amendment is to substitute the references to “duties” with “tasks” and to ensure that the terminology used within subparagraph 2.72(10)(d)(i) is consistent with the terminology used in the ANZSCO and criteria relating to Sponsorship Obligations in Division 2.19 of Part 2A of the Principal Regulations.

Item [19] – Sub-subparagraph 2.72(10)(d)(iv)(B)

This item omits “paragraph (a).” and inserts “paragraph (a); and” in sub-subparagraph 2.72(10)(d)(iv)(B) in Division 2.17 of Part 2A of the Principal Regulations.

This amendment is consequential to the amendment made by item [20] of the Schedule that inserts a new paragraph 2.72(10)(e).

Item [20] – After paragraph 2.72(10)(d)

This item inserts a new paragraph 2.72(10)(e) in Division 2.17 of Part 2A of the Principal Regulations.

New paragraph 2.72(10)(e) provides that if the person is a standard business sponsor – the Minister is satisfied that if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

·        the tasks of the position include a significant majority of the tasks of:

o       the nominated occupation listed in the ANZSCO; or

o       the nominated occupation specified in an instrument in writing for paragraph 2.72(10)(aa); and

·        if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

o       the nominated occupation is a position in the business of the standard business sponsor; or

o       the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph (2.72(10)(e)(ii)(B)); and

·        if the person lawfully operates a business in Australia:

o       the nominated occupation is a position with a business, or an associated entity, of the person; or

o       the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph (2.72(10)(e)(iii)(B)); and

·        the qualifications and experience of the visa holder, or of the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

o       for the occupation in the ANZSCO; or

o       if there is no ANZSCO code for the nominated occupation – for the occupation in the instrument in writing made for paragraph 2.72(10)(aa).

The purpose of this amendment is to ensure that a nomination for a Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 is subject to similar criteria as a nomination made before 1 July  2010 and provide for the transition from ASCO to ANZSCO.

Item [21] – Paragraph 2.72(11)(b)

This item substitutes paragraph 2.72(11)(b) and inserts a new paragraph 2.72(11)(c) in Division 2.17 of Part 2A of the Principal Regulations.

Substituted paragraph 2.72(11)(b) provides that if the person is a party to a work agreement (other than a Minister) – the Minister is satisfied that if the nomination was made before 1 July 2010 – the person has certified as part of the nomination, in writing, that:

·        the tasks of the position include a significant majority of the tasks of:

o       if the nomination is made using an ASCO code – the nomination occupation listed in the ASCO; or

o       if the nomination is not made using an ASCO code – the nominated occupation specified in the work agreement; and

·        the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

The purpose of this amendment is to preserve the previous nomination framework for nominations for a Subclass 457 (Business (Long Stay)) visa made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

This amendment also substitutes the references to “duties” with “tasks” and ensures that the terminology used within paragraph 2.72(11)(b) is consistent with the terminology used in the ANZSCO and criteria relating to Sponsorship Obligations in Division 2.19 of Part 2A of the Principal Regulations.

New paragraph 2.72(11)(c) provides that if the person is a party to a work agreement (other than a Minister) – the Minister is satisfied that if the nomination was made after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

·        the tasks of the position include a significant majority of the tasks of:

o       if the nomination is made using an ANZSCO code – the nominated occupation listed in the ANZSCO; or

o       if the nomination is not made using an ANZSCO code – the nominated occupation specified in the work agreement; and

·        the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

The purpose of this amendment is to ensure that a nomination for a Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 is subject to similar criteria as a nomination made before 1 July  2010 and provide for the transition from ASCO to ANZSCO.

Item [22] – Paragraph 2.72I(5)(b)

This item omits “the nominated” and inserts “if the nomination was made before 1 July 2010 – the nominated” in paragraph 2.72I(5)(b) of Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that in relation to the criteria for approval of nomination for the Subclass 442 (Occupational Trainee) visa the Minister must be satisfied that: if the nomination was made before 1 July 2010 – the nominated occupational training is in relation to an occupation specified by the Minister in an instrument in writing for this paragraph (2.72I(5)(b)).

The purpose of this amendment is to preserve the previous nomination framework for nominations for the Subclass 442 (Occupational Trainee) visa made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

Item [23] – After paragraph 2.72I(5)(b)

This item inserts a new paragraph 2.72I(5)(ba) in Division 2.17 of Part 2A of the Principal Regulations.

New paragraph 2.72I(5)(ba) provides in relation to the criteria for approval of nomination for the Subclass 442 (Occupational Trainee) visa that the Minister is satisfied that: if the nomination is made on or after 1 July 2010 – the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph (2.72I(5)(ba)).

The purpose of this amendment is to ensure that a nomination for the Subclass 442 (Occupational Trainee) visa made on or after 1 July 2010 is subject to similar criteria as a nomination made before 1 July  2010 and provides for the transition from ASCO to ANZSCO.

Item [24] – subregulation 2.73(4)

This item omits “The person” and inserts “If the nomination was made before 1 July 2010 – the person” in subregulation 2.73(4) in Division 2.17 of Part 2A of the Principal Regulations.

The effect of this amendment is to provide that if the nomination was made before 1 July 2010 – the person must provide, as part of the nomination:

·        the information mentioned in subregulations 2.72(5) and (8); and

·        if the person is a standard business sponsor – the certification mentioned in paragraph 2.72(10)(d); and

·        if the person is a party to a work agreement (other than the Minister) – the certification mentioned in paragraph 2.72(11)(b).

The purpose of this amendment is to preserve the previous nomination process framework for nominations for the Subclass 457 (Business (Long Stay)) visa made before 1 July 2010 and ensure that a person who makes a nomination before 1 July 2010 is not adversely affected by the transition from the use of ASCO to the ANZSCO.

Item [25] – after subregulation 2.73(4)

This item inserts new subregulation 2.73(4A) after subregulation 2.73(4) in Division 2.17 of Part 2A of the Principal Regulations.

New subregulation 2.73(4A) provides that if the nomination is made on or after 1 July 2010 – the person must provide, as part of the nomination:

·        the information mentioned in subregulations 2.72(5) and (8A); and

·        if the person is a standard business sponsor – the certification mentioned in paragraph 2.72(10)(e); and

·        if the person is a party to a work agreement (other than a Minister) – the certification mentioned in paragraph 2.72(11)(c).

The purpose of this amendment is to ensure that the process for nomination for the Subclass 457 (Business (Long Stay)) visa made on or after 1 July 2010 is subject to similar criteria as a nomination made before 1 July 2010 and to provide for the transition from ASCO to ANZSCO.

This amendment is related to amendments in items [13], [20] and [21] of the Schedule that inserts new subregulation 2.72(8A), and new paragraphs 2.72(10)(e) and 2.72(11)(c).

Item [26] – Subparagraph 2.73(6)(a)(i)

This item substitutes subparagraph 2.73(6)(a)(i) in Division 2.17 of Part 2A of the Principal Regulations.

New subparagraph 2.73(6)(a)(i) provides that the Minister may refund the fee for nomination if the tasks of the nominated occupation no longer correspond to the tasks of:

• (A) if the nomination was made before 1 July 2010 – an occupation specified in the instrument in writing made for paragraph 2.72(10)(a); or
• (B) if the nomination is made on or after 1 July 2010 – an occupation specified in the instrument in writing made for paragraph 2.72(10)(aa).

In order for the Minister to refund the nomination fee under the previous paragraph 2.73(6)(a), the person must also withdraw the nomination for the reason specified in subparagraph 2.73(6)(a)(i) before a decision is made under section 140GB of the Act.

New sub-subparagraph 2.73(6)(a)(i)(A) preserves the previous requirement that was set out in previous subparagraph 2.73(6)(a)(i) for nominations that are made before 1 July 2010. The previous requirement relates to the tasks of an occupation specified in the instrument in writing made for paragraph 2.72(10)(a). That instrument specifies occupations using ASCO codes.

New sub-subparagraph 2.73(6)(a)(i)(B) inserts a new requirement in relation to nominations that are made on or after 1 July 2010. The new requirement is similar to the previous requirement except that it relates to the tasks of an occupation specified in the instrument in writing made for new paragraph 2.72(10)(aa).

The purpose of this amendment is to ensure that the previous circumstances in which the Minister may refund the nomination fee continue to apply in relation to nominations that are made before 1 July 2010, and also apply to nominations that are made on or after 1 July 2010.

Item [27] – Subparagraph 2.73(6)(b)(ii)

This item substitutes subparagraph 2.73(6)(b)(ii) in Division 2.17 of Part 2A of the Principal Regulations.

New subparagraph 2.73(6)(b)(ii) provides that the Minister may refund the nomination fee if, after the Minister has approved the nomination, but before a visa is granted in relation to the approval, the tasks of the nominated occupation no longer correspond to the tasks of:

• (A) if the nomination was made before 1 July 2010 – an occupation specified in the instrument in writing made for paragraph 2.72(10)(a); or
• (B) if the nomination is made on or after 1 July 2010 – an occupation specified in the instrument in writing made for paragraph 2.72(10)(aa).

In order for the Minister to refund the nomination fee under the previous paragraph 2.73(6)(b), the nomination must have first been approved under section 140GB of the Act as required by previous subparagraph 2.73(6)(b)(i).

New sub-subparagraph 2.73(6)(b)(ii)(A) preserves the previous requirement set out in previous subparagraph 2.73(6)(b)(ii) for nominations that are made before 1 July 2010. The previous requirement relates to the tasks of an occupation specified in the instrument in writing made for paragraph 2.72(10)(a).

New sub-subparagraph 2.73(6)(b)(ii)(B) inserts a new requirement in relation to nominations that are made on or after 1 July  2010. The new requirement is similar to the previous requirement except that it relates to the tasks of an occupation specified in the instrument in writing made for new paragraph 2.72(10)(aa).

The purpose of this amendment is to ensure that the previous circumstances in which the Minister may refund the nomination fee continue to apply in relation to nominations that are made before 1 July 2010, and also apply to nominations that are made on or after 1 July 2010.

This amendment relates to the amendment in item [15] of the Schedule which inserts new paragraph 2.72(10)(aa).

Item [28] – Sub-subparagraph 2.73(6)(c)(ii)(B)

This item omits “the year.” and inserts “the year; or” in sub-subparagraph 2.73(6)(c)(ii)(B) in Division 2.17 of Part 2A of the Principal Regulations.

This amendment is consequential to the amendment made by item [29] of the Schedule which inserts new paragraph 2.73(6)(d) after paragraph 2.73(6)(c).

Item [29] – After paragraph 2.73(6)(c)

This item inserts new paragraph 2.73(6)(d) after paragraph 2.73(6)(c) in Division 2.17 of Part 2A of the Principal Regulations.

New paragraph 2.73(6)(d) provides that the Minister may refund the nomination fee if both of the following apply:

• on or after 1 July 2010, the person nominates an occupation using an ASCO code;
• the person withdraws the nomination for that reason before a decision is made under section 140GB of the Act.

The purpose of this amendment is to provide that the Minister may refund a nomination fee if a person nominates an occupation using an ASCO code on or after 1 July 2010 and withdraws the nomination for that reason before a decision is made under 140GB of the Act that relates to the Minister approving a nomination. The amendment is also to ensure applicants for nomination are not disadvantaged by the transition to the use of the ANZSCO.

Item [30] – Schedule 1, paragraph 1135(3)(c)

This item substitutes paragraph 1135(3)(c) and inserts a new paragraph 1135(3)(ca) in item 1135 of Schedule 1 to the Principal Regulations.

The previous paragraph 1135(3)(c) provided that an applicant for a Skilled (Migrant) (Class VE) visa who is seeking to satisfy the primary criteria must nominate a skilled occupation in his or her application.

New paragraph 1135(3)(c) provides that an applicant for a Skilled (Migrant) (Class VE) visa who is seeking to satisfy the primary criteria must nominate a skilled occupation for the applicant in the application.

The purpose of this amendment is to clarify that the applicant must nominate a skilled occupation that is applicable to the person in accordance with the instrument in writing made under new regulation 1.15I, which is inserted by item [7] of the Schedule. New regulation 1.15I provides in part that an occupation is a “skilled occupation” in relation to a person only if the occupation is of a kind that is applicable to the person in accordance with the instrument in writing made under that regulation.

New paragraph 1135(3)(ca) provides that the applicant seeking to satisfy the primary criteria for the grant of a Subclass 176 (Skilled – Sponsored) visa must meet the requirements in subitem 1135(3A) or 1135(3B).

This amendment relates to new subitems 1135(3A) and (3B) that are inserted by item [32] of the Schedule.

Item [31] – Schedule 1, paragraph 1135(3)(e)

This item omits paragraph 1135(3)(e) from item 1135 of Schedule 1 to the Principal Regulations.

Paragraph 1135(3)(e) previously provided that an application by a person seeking to satisfy the primary criteria for the grant of a Skilled (Migrant) (Class VE) visa must be made before 8 May 2010 or after a date specified by the Minister in an instrument in writing.

The Principal Regulations were amended on 8 May 2010 to prevent applications for certain General Skilled Migration visas, including the Skilled (Migrant) (Class VE) visa, being made on or after 8 May 2010 until after a specified date. These amendments were made in anticipation of an announcement by the Minister relating to the proposed changes to the list specified under the definition of “skilled occupation”.

The purpose of this amendment is to allow certain applications for a Skilled (Migrant) (Class VE) visa to be made on or after the commencement of the Regulations.

Item [32] – Schedule 1, after subitem 1135(3)

This item inserts new subitems 1135(3A) and 1135(3B) in item 1135 of Schedule 1 to the Principal Regulations.

New subitem 1135(3A) and 1135(3B), together with new paragraph 1135(3)(ca) inserted by item [30] of the Schedule, provides that, to make a valid application for a Skilled (Migrant) (Class VE) visa, an applicant seeking to meet the primary criteria (the primary applicant) for a Subclass 176 (Skilled – Sponsored) visa must either:

·        be nominated by a State or Territory government agency; or

·        meet certain requirements in relation to sponsorship by a certain relative.

Specifically, new subitem 1135(3A) provides that the applicant must be nominated by a State or Territory government agency.

Specifically, new subitem 1135(3B) provides that the requirements in relation to sponsorship by a certain relative are that:

• the applicant is sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

·        the applicant has declared on the application that the sponsor:

o                   is usually resident in Australia; and

o                   is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 176 visa), in a certain way specified (for example a parent or child); and

• each person who is an applicant for a Skilled (Migrant) (Class VE) visa and claims to be a member of the family unit of the applicant is sponsored by the same person; and

·        the sponsorship was entered into on Form 1277 (Internet) or Form 1277.

Previously, the requirement that a primary applicant for a Subclass 176 (Skilled – Sponsored) visa must either be nominated by a State or Territory government agency or sponsored by a certain relative, was included as a time of decision criterion in subclauses 176.222(2) and 176.222(3) respectively of Schedule 2 to the Principal Regulations. That is, the applicant must be nominated or sponsored, and the Minister must have accepted that nomination or sponsorship, at the time of the Minister’s decision on the visa application.

This item ensures that an applicant must be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Migrant) (Class VE) visa. The requirements relating to nomination or sponsorship in new subitem 1135(3A) and 1135(3B) of Schedule 1 to the Principal Regulations largely reflect those previously in paragraphs 176.222(2)(a) and 176.222(3)(a) of Schedule 2 to the Principal Regulations, with minor differences to ensure that the new requirements in Schedule 1 to the Principal Regulations can be objectively assessed.

The requirement that the Minister has accepted the nomination by the State or Territory government agency or the sponsorship by the specified relative, remains as a time of decision criterion in Part 176 of Schedule 2 to the Principal Regulations.

The purpose of this item is to ensure that a list of skilled occupations can be specified by the Minister in an instrument in writing under the new definition of “skilled occupation” in regulation 1.15I, which is inserted by item [7] of the Schedule, for applicants who are nominated by a State or Territory government agency.

Item [33] – Schedule 1, after paragraph 1136(3)(c)

This item inserts new paragraph 1136(3)(ca) in item 1136 of Schedule 1 to the Principal Regulations.

New paragraph 1136(3)(ca) provides that an applicant seeking to satisfy the primary criteria for the grant of a Subclass 886 (Skilled – Sponsored) visa must meet the requirements in subitem 1136(3A) or subitem 1136(3B).

This amendment relates to new subitems 1136(3A) and 1136(3B) that are inserted by item [34] of the Schedule.

Item [34] – Schedule 1, after subitem 1136(3)

This item inserts new subitems 1136(3A) and 1136(3B) in item 1136 of Schedule 1 to the Principal Regulations.

New subitems 1136(3A) and 1136(3B), together with new paragraph 1136(3)(ca) that is inserted by item [33] of the Schedule, provides that, to make a valid application for a Skilled (Residence) (Class VB) visa, an applicant seeking to meet the primary criteria (the primary applicant) for a Subclass 886 (Skilled – Sponsored) visa must either:

·        be nominated by a State or Territory government agency; or

·        meet certain requirements in relation to sponsorship by a certain relative (which are the same requirements as those stated in item [32] of the Schedule).

Specifically, new subitem 1136(3A) provides that the applicant must be nominated by a State or Territory government agency.

Specifically, new subitem 1135(3B) provides that the requirements in relation to sponsorship by a certain relative are that:

·        the applicant is sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

·        the applicant has declared on the application that the sponsor:

o                   is usually resident in Australia; and

o                   is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 886 visa), in a certain way specified (for example a parent or child); and

·        each person who is an applicant for a Skilled (Residence) (Class VB) visa; and who claims to be a member of the family unit of the applicant; is sponsored by the same person; and

·        the sponsorship was entered into on Form 1277 (Internet) or Form 1277.

Previously, the requirement that a primary applicant for a Subclass 886 (Skilled – Sponsored) visa must either be nominated by a State or Territory government agency or sponsored by a certain relative was included as a time of decision criterion in subclause 886.222(2) and 886.222(3) respectively of Schedule 2 to the Principal Regulations. That is, the applicant must have been nominated or sponsored, and the Minister must have accepted that nomination or sponsorship, at the time of the Minister’s decision on the visa application.

This item ensures that an applicant must be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Residence) (Class VB) visa. The requirements relating to nomination or sponsorship in new subitems 1136(3A) and 1136(3B) of Schedule 1 to the Principal Regulations largely reflect those previously in paragraphs 886.222(2)(a) and 886.222(3)(a) of Schedule 2 to the Principal Regulations, with minor differences to ensure that the new Schedule 1 requirements can be objectively assessed.

The requirement that the Minister has accepted the nomination by the State or Territory government agency or the sponsorship by the specified relative, remains as a time of decision criterion in Part 886 of Schedule 2 to the Principal Regulations.

The purpose of this item is the same as that stated in item [32] in this Schedule.

Item [35] – Schedule 1, subparagraph 1136(4)(b)(ii)

This item inserts “for the applicant” after “occupation” in subparagraph 1136(4)(b)(ii) of Schedule 1 to the Principal Regulations.

The effect of new subparagraph 1136(4)(b)(ii) is to provide that an applicant for a Skilled (Residence) (Class VB) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is to clarify that the applicant must nominate a skilled occupation that is applicable to the person in accordance with the instrument in writing made under new regulation 1.15I, which is inserted by item [7] of the Schedule. New regulation 1.15I provides in part that an occupation is a “skilled occupation” in relation to a person only if the occupation is of a kind that is applicable to the person in accordance with the instrument in writing made under that regulation.

Item [36] – Schedule 1, subparagraph 1136(5)(b)(ii)

This item inserts “for the applicant” after “occupation” in subparagraph 1136(5)(b)(ii) of Schedule 1 to the Principal Regulations.

New subparagraph 1136(5)(b)(ii) provides that an applicant for a Skilled (Residence) (Class VB) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [37] – Schedule 1, subparagraph 1136(6)(b)(iii)

This item inserts “for the applicant” after “occupation” in subparagraph 1136(6)(b)(iii) of Schedule 1 to the Principal Regulations.

New subparagraph 1136(6)(b)(iii) provides that an applicant for a Skilled (Residence) (Class VB) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [38] – Schedule 1, subparagraph 1228(3)(b)(ii)

This item substitutes subparagraph 1228(3)(b)(ii) and inserts new subparagraph 1228(3)(b)(iii) in item 1228 of Schedule 1 to the Principal Regulations.

The previous paragraph 1228(3)(b)(ii) provided that an applicant for a Skilled (Provisional) (Class VF) visa who was seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled – Regional Sponsored) visa must nominate a skilled occupation in his or her application.

New subparagraph 1228(3)(b)(ii) provides that an applicant for a Skilled (Provisional) (Class VF) visa who is seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled – Regional Sponsored) visa must nominate a skilled occupation for the applicant in the application.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

New subparagraph 1228(3)(b)(iii) provides that an applicant for a Skilled (Provisional) (Class VF) visa who is seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled – Regional Sponsored) visa must meet the requirements in subitem 1228(3A) or 1228(3B).

This amendment relates to new subitems 1228(3A) and (3B) that are inserted by item [40] of the Schedule.

Item [39] – Schedule 1, paragraph 1228(3)(e)

This item omits paragraph 1228(3)(e) from item 1228 of Schedule 1 to the Principal Regulations.

Paragraph 1228(3)(e) provided that an application by a person seeking to satisfy the primary criteria for the grant of a Subclass 475 (Skilled – Regional Sponsored) visa, must be made before 8 May 2010 or after a date specified by the Minister in an instrument in writing.

The Principal Regulations were amended on 8 May 2010 to prevent applications for certain General Skilled Migration visas, including the Skilled (Provisional) (Class VF) visa, being made on or after 8 May 2010 until after a specified date. These amendments were made in anticipation of an announcement by the Minister relating to proposed changes to the list specified under the definition of “skilled occupation”.

The purpose of this amendment is to allow certain applications for a Skilled (Provisional) (Class VF) visa to be made on or after the commencement of the Regulations.

 

Item [40] – Schedule 1, after subitem 1228(3)

This item inserts new subitems 1228(3A) and 1228(3B) in item 1228 of Schedule 1 to the Principal Regulations.

New subitems 1228(3A) and 1228(3B), together with new paragraph 1228(3)(b)(iii) inserted by item [38] of the Schedule, provides that, to make a valid application for a Skilled (Provisional) (Class VF) visa, an applicant seeking to meet the primary criteria (the primary applicant) for a Subclass 475 (Skilled – Regional Sponsored) visa must either:

·        be nominated by a State or Territory government agency; or

·        meet certain requirements in relation to sponsorship by a certain relative.

Specifically, new subitem 1228(3A) provides that the applicant must be nominated by a State or Territory government agency.

Specifically, new subitem 1228(3B) provides that the requirements in relation to sponsorship by a certain relative are that:

·        the applicant is sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

·        the applicant has declared on the application that the sponsor:

o                   is usually resident in Australia; and

o                   is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 475 visa) in a certain way specified (for example a parent or child); and

·        each person who is an applicant for a Skilled (Provisional) (Class VF) visa and who claims to be a member of the family unit of the applicant is sponsored by the same person; and

·        the sponsorship was entered into on Form 1277 (Internet) or Form 1277.

Previously, the requirement that a primary applicant for a Subclass 475 (Skilled – Regional Sponsored) visa must either be nominated by a State or Territory government agency or sponsored by a certain relative was included as a time of application criterion in subclause 475.213(2) and 475.213(3) respectively of Schedule 2 to the Principal Regulations. That is, the applicant must be nominated or sponsored, and the Minister must have accepted that nomination or sponsorship, at the time of the Minister’s decision on the visa application.

This item ensures that an applicant must be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VF) visa. The requirements relating to nomination or sponsorship in new subitems 1228(3A) and 1228(3B) of Schedule 1 to the Principal Regulations largely reflect those in subclauses 475.213(2) and 475.213(3) of Schedule 2 to the Principal Regulations, with minor differences to ensure that the new Schedule 1 requirements can be objectively assessed.

The requirement that the Minister has accepted the nomination by the State or Territory government agency or the sponsorship by the specified relative, remains as a time of decision criterion in Part 475 of Schedule 2 to the Principal Regulations.

The purpose of this item is the same as that stated in item [32] of the Schedule.

Item [41] – Schedule 1, after paragraph 1229(3)(d)

This item inserts new paragraph 1229(3)(da) after paragraph 1229(3)(d) in item 1229 of Schedule 1 to the Principal Regulations.

New paragraph 1229(3)(da) provides that the applicant seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled – Regional Sponsored) visa must meet the requirements in subitem 1229(3A) or 1229(3B).

This amendment relates to new subitems 1229(3A) and 1229(3B) that are inserted by item [42] of the Schedule.

Item [42] – Schedule 1, after subitem 1229(3)

This item inserts new subitems 1229(3A) and 1229(3B) in item 1229 of Schedule 1 to the Principal Regulations.

New subitems 1229(3A) and (3B), together with new paragraph 1229(3)(da) that is inserted by item [41]of the Schedule, provides that, to make a valid application for a Skilled (Provisional) (Class VC) visa, an applicant seeking to meet the primary criteria (the primary applicant) for a Subclass 487 (Skilled – Regional Sponsored) visa must either:

·        be nominated by a State or Territory government agency; or

·        meet certain requirements in relation to sponsorship by a certain relative (which are the same requirements as those stated in item [40] of the Schedule).

Specifically, new subitem 1229(3A) provides that the applicant must be nominated by a State or Territory government agency.

Specifically, new subitem 1229(3B) provides that the requirements in relation to sponsorship by a certain relative are that:

·        the applicant is sponsored by a person who has turned 18 and is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

·        the applicant has declared on the application that the sponsor:

o                   is usually resident in Australia; and

o                   is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 487 visa) in a certain way specified (for example a parent or child); and

·        each person who is an applicant for a Skilled (Provisional) (Class VC) visa and who claims to be a member of the family unit of the applicant is sponsored by the same person; and

·        the sponsorship was entered into on Form 1277 (Internet) or Form 1277.

Previously, the requirement that a primary applicant for a Subclass 487
(Skilled – Regional Sponsored) visa must either be nominated by a State or Territory government agency or sponsored by a certain relative was included as a time of application criterion in subclauses 487.213(2) and 487.213(3) respectively of Schedule 2 to the Principal Regulations. That is, the applicant must be nominated or sponsored, and the Minister must have accepted that nomination or sponsorship, at the time of the Minister’s decision on the visa application.

This item ensures that an applicant must be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VC) visa. The requirements relating to nomination or sponsorship in new subitems 1229(3A) and 1229(3B) of Schedule 1 to the Principal Regulations largely reflect those in subclauses 487.213(2) and 487.213(3) of Schedule 2 to the Principal Regulations, with minor differences to ensure that the new Schedule 1 requirements can be objectively assessed.

The requirement that the Minister has accepted the nomination by the State or Territory government agency or the sponsorship by the specified relative, remains as a time of decision criterion in Part 487 of Schedule 2 to the Principal Regulations.

The purpose of this item is the same as that stated in item [32] of the Schedule.

Item [43] – Schedule 1, subparagraph 1229(4)(b)(ii)

This item inserts “for the applicant” after “occupation” in subparagraph 1229(4)(b)(ii) of Schedule 1 to the Principal Regulations.

The effect of new subparagraph 1229(4)(b)(ii) is to provide that an applicant for a Skilled (Provisional) (Class VC) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [44] – Schedule 1, subparagraph 1229(5)(b)(ii)

This item inserts “for the applicant” after “occupation” in subparagraph 1229(5)(b)(ii) of Schedule 1 to the Principal Regulations.

The effect of new subparagraph 1229(5)(b)(ii) is to provide that an applicant for a Skilled (Provisional) (Class VC) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [45] – Schedule 1, subparagraph 1229(6)(b)(iii)

This item inserts “for the applicant” after “occupation” in subparagraph 1229(6)(b)(iii) of Schedule 1 to the Principal Regulations.

The effect of new subparagraph 1229(6)(b)(iii) is to provide that an applicant for a Skilled (Provisional) (Class VC) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [46] – Schedule 1, subparagraph 1229(7)(b)(ii)

This item inserts “for the applicant” after “occupation” in subparagraph 1229(7)(b)(ii) of Schedule 1 to the Principal Regulations.

The effect of new subparagraph 1229(7)(b)(ii) provide that an applicant for a Skilled (Provisional) (Class VC) visa who is seeking to satisfy the primary criteria for the grant of the visa must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing.

The purpose of this amendment is the same as that stated for item [35] of the Schedule.

Item [47] – Schedule 2, clause 106.111, definition of designated area

This item omits the definition of “designated area” from clause 106.111 of Part 106 of Schedule 2 to the Principal Regulations.

This amendment is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the previous definition that is omitted by this item.

Item [48] – Schedule 2, clause 106.111, before note 1

This item inserts note 1A in clause 106.111 of Part 106 of Schedule 2 to the Principal Regulations.

The new note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [49] – Schedule 2, clause 139.111, definition of designated area

This item omits the definition of “designated area” from clause 139.111 of Part 139 of Schedule 2 to the Principal Regulations.

This amendment is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the previous definition that is omitted by this item.

Item [50] – Schedule 2, clause 139.111, note 1

This item inserts “designated area” after “For” in the note in clause 139.111 of Part 139 of Schedule 2 to the Principal Regulations.

The amended note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [51] – Schedule 2, Division 175.2, heading, note

This item omits “The person seeking to satisfy the primary criteria must make an application for the visa before 8 May 2010 or after a date specified by the Minister in an instrument in writing.” from the note under the heading at Division 175.2 of Part 175 of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment made by item [31] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Migrant) (Class VE) visa on or after 8 May 2010.

Item [52] – Schedule 2, Division 175.3, heading, note

This item substitutes the note under the heading of Division 175.3 of Part 175 of Schedule 2 to the Principal Regulations.

The previous note under the heading at Division 175.3 provided that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria in connection with an application made before 8 May 2010 or satisfies the primary criteria in connection with an application made after a date specified by the Minister in an instrument in writing.

The new note under the heading at Division 175.3 provides that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria.

This amendment is consequential to the amendment made by item [31] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Migrant) (Class VE) visa on or after 8 May 2010.

Item [53] – Schedule 2, Division 176.2, heading, note

This item omits “The person seeking to satisfy the primary criteria must make an application for the visa before 8 May 2010 or after a date specified by the Minister in an instrument in writing.” from the note under the heading at Division 176.2 of Part 176 of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendment made by item [31] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Migrant) (Class VE) visa on or after 8 May 2010.

Item [54] – Schedule 2, subclauses 176.222(1) and (2)

This item substitutes subclauses 176.222(1) and 176.222(2) of Part 176 of Schedule 2 to the Principal Regulations.

New subclause 176.222(1) provides that, to meet the time of decision criteria for a Subclass 176 (Skilled – Sponsored) visa:

·        if the applicant was nominated by a State or Territory government agency in accordance with subitem 1135(3A) of Schedule 1 (which is inserted by item [32] of the Schedule) at the time of making the application, the requirements of subclause 176.222(2) must be met; or

·        if the applicant was sponsored in accordance with subitem 1135(3B) of Schedule 1 (which is inserted by item [32] of the Schedule) at the time of making the application, the requirements of subclause 176.222(3) must be met.

New subclause 176.222(2) provides that the Minister must have accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1135(3A) of Schedule 1, which is inserted by item [32] of the Schedule.

This amendment is consequential to the amendment made by item [32] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by the specified relative in order to make a valid application for a Skilled (Migrant) (Class VE) visa. This amendment ensures that, at the time of the Minister’s decision to grant a Subclass 176 (Skilled – Sponsored) visa, either:

·        the Minister has accepted the nomination of the applicant by the State or Territory government agency that nominated the applicant at the time of application; or

·        the Minister has accepted the sponsorship of the person by a certain relative who meets the requirements set out in subclause 176.222(3) of Schedule 2 to the Principal Regulations (whether or not this is the relative who sponsored the applicant at the time of application).

The reason for allowing a different relative to sponsor at time of application and time of decision, for example, is to accommodate a situation where a relative is no longer able to sponsor due to death or illness. A similar situation would not arise where the applicant is nominated by a State or Territory government agency.

Item [55] – Schedule 2, Division 176.3, heading, note

This item substitutes the note under the heading of Division 176.3 of Part 176 of Schedule 2 to the Principal Regulations.

The previous note under the heading at Division 176.3 provided that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria in connection with an application made before 8 May 2010 or satisfies the primary criteria in connection with an application made after a date specified by the Minister in an instrument in writing.

The new note under the heading at Division 176.3 provides that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria.

This amendment is consequential to the amendment made by item [31] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Migrant) (Class VE) visa on or after 8 May 2010.

Item [56] - Schedule 2, paragraph 457.223(4)(aa)

This item inserts “or (aa)” after “2.72(10)(a)” in paragraph 457.223(4)(aa) of Part 457 of Schedule 2 to the Principal Regulations.

The effect of this amendment is to provide that at the time of decision the Minister must be satisfied in relation to an applicant seeking to satisfy the criteria in relation to standard business sponsorship, that the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect.

The purpose of paragraph 457.223(4)(aa) is to ensure that, at the time of decision, the nominated occupation continues to be an occupation that may be nominated in relation to a Subclass 457 (Business (Long Stay)) visa. This ensures that the Subclass 457 (Business (Long Stay)) visa program is responsive to the needs of Australia’s labour market.

The purpose of this amendment is to provide for nominations that are made on or after 1 July 2010 and ensure that the nominated occupation must be either specified by the Minister in an instrument in writing for paragraph 2.72(10)(a) or new paragraph 2.72(10)(aa), which is inserted by item [9] of the Schedule, at the time of decision for an applicant to meet the criteria in relation to standard business sponsorship.

Item [57] - Schedule 2, clause 475.111, definition of designated area

This item omits the definition of “designated area” from clause 475.111 of Part 475 of Schedule 2 to the Principal Regulations.

This item is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the previous definition that is omitted by this item.

Item [58] – Schedule 2, clause 475.111, after note 3

This item inserts note 3A in clause 475.111 of Part 475 of Schedule 2 to the Principal Regulations.

The new note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [59] – Schedule 2, Division 475.2, heading, note

This item omits “The person seeking to satisfy the primary criteria must make an application for the visa before 8 May 2010 or after a date specified by the Minister in an instrument in writing.” from the note under the heading at Division 475.2 of Part 475 of Schedule 2 to the Principal Regulations.

This item is consequential to the amendment made by item [39] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Provisional) (Class VF) visa on or after 8 May 2010.

Item [60] – Schedule 2, clause 475.213

This item omits clause 475.213 of Part 475 of Schedule 2 to the Principal Regulations.

Previous clause 475.213 provided that, to meet the time of application criteria for grant of a Subclass 475 (Skilled – Regional Sponsored) visa, the applicant must have indicated that the applicant is nominated by a State or Territory government agency or (along with all persons included in the application) is sponsored by a certain relative.

This item is consequential to the amendments made by item [40] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VF) visa.

Item [61] – Schedule 2, clause 475.222

This item substitutes clause 475.222 of Part 475 of Schedule 2 to the Principal Regulations.

New subclause 475.222(1) provides that, to meet the time of decision criteria for a Subclass 475 (Skilled – Regional Sponsored) visa:

·        if the applicant was nominated by a State or Territory government agency in accordance with subitem 1228(3A) of Schedule 1 (inserted by item [40] of the Schedule) at the time of making the application, the requirements of subclause 475.222(2) must be met; or

·        if the applicant was sponsored in accordance with subitem 1228(3B) of Schedule 1 (inserted by item [40] of the Schedule) at the time of making the application, the requirements of subclause 475.222(3) must be met.

New subclause 475.222(2) provides that the Minister must have accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1228(3A) of Schedule 1, which is inserted by item [40] of the Schedule.

New subclause 475.222(3) provides for the requirements that must be met in relation to sponsorship by a certain relative.

This item is consequential to item [40] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VF) visa. This item ensures that, at the time of the Minister’s decision to grant a Subclass 475 (Skilled – Regional Sponsored) visa, either:

·        the Minister has accepted the nomination of the applicant by the State or Territory government agency that nominated the applicant at the time of application; or

·        the Minister has accepted the sponsorship of the person by a certain relative who meets the requirements set out in new subclause 475.222(3) of Schedule 2 to the Principal Regulations (whether or not this is the relative who sponsored the applicant at the time of application).

The requirements in new subclause 475.222(3) reflects those previously set out in clause 475.213, which is omitted by item [60] of the Schedule, and paragraph 475.222(b), which is substituted by this item.

The reason for allowing a different relative to sponsor at time of application and time of decision, for example is to accommodate a situation where a relative is no longer able to sponsor due to death or illness. A similar situation would not arise where the applicant is nominated by a State or Territory government agency.

Item [62] – Schedule 2, Division 475.3, heading, note

This item substitutes the note under the heading at Division 475.3 of Part 475 of Schedule 2 to the Principal Regulations.

The current note under the heading at Division 475.3 provides that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria in connection with an application made before 8 May 2010 or satisfies the primary criteria in connection with an application made after a date specified by the Minister in an instrument in writing.

The new note under the heading at Division 475.3 provides that the secondary criteria must be satisfied by applicants who are members of the family unit of an applicant who satisfies the primary criteria.

This item is consequential to the amendment made by item [39] of the Schedule, which omits the provision preventing a person who is seeking to satisfy the primary criteria from making an application for a Skilled (Provisional) (Class VF) visa on or after 8 May 2010.

Item [63] – Schedule 2, clause 487.111, definition of designated area

This item omits the definition of “designated area” from clause 487.111 of Part 487 of Schedule 2 to the Principal Regulations.

This item is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the current definition that is omitted by this item.

Item [64] – Schedule 2, clause 487.111, after note 3

This item inserts note 3A in clause 487.111 of Part 487 of Schedule 2 to the Principal Regulations.

The new note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [65] – Schedule 2, clause 487.213

This item omits clause 487.213 of Part 487 of Schedule 2 to the Principal Regulations.

Previous clause 487.213 provided that, to meet the time of application criteria for grant of a Subclass 487 (Skilled – Regional Sponsored) visa, the applicant must have indicated that the applicant is nominated by a State or Territory government agency or (along with all persons included in the application) is sponsored by a certain relative.

This item is consequential to the amendments made by item [42] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VC) visa.

Item [66] – Schedule 2, clause 487.225

This item substitutes clause 487.225 of Part 487 of Schedule 2 to the Principal Regulations.

New subclause 487.225(1) provides that, to meet the time of decision criteria for a Subclass 487 (Skilled – Regional Sponsored) visa:

·        if the applicant was nominated by a State or Territory government agency in accordance with subitem 1229(3A) of Schedule 1 (inserted by item [42] of the Schedule) at the time of making the application, the requirements of subclause 487.225(2) must be met; or

·        if the applicant was sponsored in accordance with subitem 1229(3B) of Schedule 1 (inserted by item [42] of the Schedule) at the time of making the application, the requirements of subclause 487.225(3) must be met.

New subclause 487.225(2) provides that the Minister must have accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1229(3A) of Schedule 1, which is inserted by item [42] of the Schedule.

New subclause 487.225(3) provides for the requirements that must be met in relation to sponsorship by a certain relative.

This item is consequential to item [42] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Provisional) (Class VC) visa. This item ensures that, at the time of the Minister’s decision to grant a Subclass 487 (Skilled – Regional Sponsored) visa, either:

·        the Minister has accepted the nomination of the applicant by the State or Territory government agency that nominated the applicant at the time of application; or

·        the Minister has accepted the sponsorship of the person by a certain relative who meets the requirements set out in new subclause 487.225(3) of Schedule 2 to the Principal Regulations (whether or not this is the relative who sponsored the applicant at the time of application).

The requirements in new subclause 487.225(3) reflect those previously set out in clause 487.213, which is omitted by item [65] of the Schedule, and paragraph 487.225(b), which is substituted by this item.

The reason for allowing a different relative to sponsor at time of application and time of decision, for example, is to accommodate a situation where a relative is no longer able to sponsor due to death or illness. A similar situation would not arise where the applicant is nominated by a State or Territory government agency.

Item [67] – Schedule 2, clause 496.111, definition of designated area

This item omits the definition of “designated area,” from clause 496.111 of Part 496 of Schedule 2 to the Principal Regulations.

This item is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the previous definition that is omitted by this item.

Item [68] – Schedule 2, clause 496.111, note 1

This item inserts “designated area,” after “For” in the note in clause 496.111 of Part 496 of Schedule 2 to the Principal Regulations.

The amended note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [69] – Schedule 2, clause 846.111, definition of designated area

This item omits the definition of “designated area” from clause 846.111 of Part 846 of Schedule 2 to the Principal Regulations.

This item is consequential to item [4] of the Schedule, which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the previous definition that is omitted by this item.

Item [70] – Schedule 2, clause 846.111, note 1

This item omits “AUD” and inserts “AUD, designated area” in note 1 to clause 846.111 of Part 846 of Schedule 2 to the Principal Regulations.

The amended note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [71] – Schedule 2, clause 863.111, definition of designated area

This item omits the definition of “designated area” from clause 863.111 of Part 863 of Schedule 2 to the Principal Regulations.

This item is consequential to item [4] of the Schedule which inserts a definition of “designated area” in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations. The new definition of “designated area” is substantively the same as the current definition that is omitted by this item.

Item [72] – Schedule 2, clause 863.111, note 1

This item inserts “designated area,” after “For” in the note in clause 863.111 of Part 863 of Schedule 2 to the Principal Regulations.

The amended note explains that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

Item [73] – Schedule 2, clause 883.111, including the note

This item substitutes clause 883.111 with new Note 1 and Note 2 to Division 883.1 of Part 883 of Schedule 2 to the Principal Regulations.

New note 1 provides that “designated area” is defined in regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

New note 2 provides that “vocational English” is defined in regulation 1.15B of the Principal Regulations.

Item [74] – Schedule 2, subclauses 886.222(1) and (2)

This item substitutes subclauses 886.222(1) and 886.222(2) of Part 886 of Schedule 2 to the Principal Regulations.

New subclause 886.222(1) provides that, to meet the time of decision criteria for a Subclass 886 (Skilled – Sponsored) visa:

·        if the applicant was nominated by a State or Territory government agency in accordance with subitem 1136(3A) of Schedule 1 (inserted by item [34] in this Schedule) at the time of making the application, the requirements of subclause 886.222(2) must be met; or

·        if the applicant was sponsored in accordance with subitem 1136(3B) of Schedule 1 (inserted by item [34] of the Schedule) at the time of making the application, the requirements of subclause 886.222(3) must be met.

New subclause 886.222(2) provides that the Minister must have accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1136(3A) of Schedule 1 which is inserted by item [34] of the Schedule.

This item is consequential to the amendment made by item [34] of the Schedule, which provides that an applicant must either be nominated by a State or Territory government agency or sponsored by a certain relative in order to make a valid application for a Skilled (Residence) (Class VB) visa. This item ensures that, at the time of the Minister’s decision to grant a Subclass 886 (Skilled – Sponsored) visa, either:

·        the Minister has accepted the nomination of the applicant by the State or Territory government agency that nominated the applicant at the time of application; or

·        the Minister has accepted the sponsorship of the person by a certain relative who meets the requirements set out in current subclause 886.222(3) of Schedule 2 to the Principal Regulations (whether or not this is the relative who sponsored the applicant at the time of application).

The reason for allowing a different relative to sponsor at time of application and time of decision, for example, is to accommodate a situation where a relative is no longer able to sponsor due to death or illness. A similar situation would not arise where the applicant is nominated by a State or Territory government agency.

Item [75] – Schedule 8, paragraph 8107(3A)(a)

This item substitutes paragraph 8107(3A)(a) and inserts new paragraph 8107(3A)(aa) in Schedule 8 to the Principal Regulations.

New paragraph 8107(3A)(a) provides that if the nomination was made before
1 July 2010 – the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii).

New paragraph 8107(3A)(aa) provides that if the nomination is made on or after 1 July 2010 – the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii).

Clause 8107 in Schedule 8 to the Principal Regulations sets out particular conditions that apply to the holders of several subclasses of visa. Subclause 8107(3) applies in relation to Subclass 457 (Business (Long Stay)) visas, and sets out the occupation the visa holder can undertake and who the visa holder can work for, in circumstances where subclause 8107(3A) does not apply.

Previous paragraph 8107(3A)(a) provided the circumstance for subparagraph 8107(3)(a)(ii) and provides that the holder’s occupation is specified in an instrument in writing for current subparagraph 2.72(10)(d)(ii) or (iii).

The purpose of the amendment is to ensure that subclause 8107(3A) applies in circumstances where the visa holder’s occupation is specified in the new instrument that is be made under new subparagraph 2.72(10)(e)(ii) or (iii) consequential to the amendment in item [20] of the Schedule. The amendment also ensures that the subclause extends to visa holders in relation to whom there is a nomination that is made on or after 1 July 2010.