MIGRATION LEGISLATION AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 116 OF 2009) EXPLANATORY STATEMENT

MIGRATION LEGISLATION AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 116 OF 2009)

ATTACHMENT B

Details of the Migration Legislation Amendment Regulations 2009 (No. 2)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Migration Legislation Amendment Regulations 2009 (No. 2)

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the dates set out in paragraphs (a) and (b). Paragraph (a) provides that regulations 1, 2, 3 and Schedule 1 commence on 27 June 2009. Paragraph (b) provides that the remainder of the Regulations commence on

1 July 2009.

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

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

Subregulation 3(2) provides that the amendment applies in relation to an application for approval as a standard business sponsor:

· made on or after 27 June 2009; or

· made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Migration Act)), before 27 June 2009.

Subsection 5(9) of the Migration Act provides that an application is finally determined if a decision has been made by the person authorised (or delegated) to make a decision in respect of the application, and that decision is no longer subject to, or is outside of time for, merits review by the Migration Review Tribunal or the Refugee Review Tribunal.

The effect of this transitional provision is that the following applications for approval as a standard sponsor must satisfy new paragraph 1.20D(2)(ca):

· an application made before 27 June 2009 which has not been decided by the Minister (or the Minister’s delegate);

· an application made before 27 June 2009 which has been decided by the Minister (or the Minister’s delegate), and is being reviewed by the Migration Review Tribunal; and

· an application made on or after 27 June 2009.

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

Subregulation 4(1) provides that Schedule 2 amends the Migration Regulations.

Subregulation 4(2) provides that the amendments made by Schedule 2 apply in relation to an application for a visa made on or after 1 July 2009.

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

Subregulation 5(1) provides that Schedule 3 amends the Migration Regulations.

A note advises that there are no transitional arrangements for Schedule 3.

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

Subregulation 6(1) provides that Schedule 4 amends the Migration Regulations.

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a visa made on or after 1 July 2009.

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

Subregulation 7(1) provides that Schedule 5 amends the Migration Regulations.

Subregulation 7(2) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made on or after 1 July 2009 or made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act), before 1 July 2009.

Regulation 8 – Amendment of Migration Regulations 1994 – Schedule 6

Subregulation 8(1) provides that Schedule 6 amends the Migration Regulations.

Subregulation 8(2) provides that the amendment made by Schedule 6 applies in relation to a matter for which an obligation to pay a fee is incurred on or after 1 July 2009.

Regulation 9 – Amendment of Migration Regulations 1994 – Schedule 7

Subregulation 9(1) provides that Schedule 7 amends the Migration Regulations.

Subregulation 9(2) provides that the amendments made by Schedule 7 apply in relation to an application for a visa made on or after 1 July 2009 or made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act), before 1 July 2009.

Regulation 10 – Amendment of Migration Regulations 1994 – Schedule 8

Subregulation 10(1) provides that Schedule 8 amends the Migration Regulations.

Subregulation 10(2) provides that the amendments made by Schedule 8 apply in relation to an application for a visa made on or after 1 July 2009 and an application for a visa (other than a Witness Protection (Trafficking) (Temporary) (Class UM) visa) made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act), before 1 July 2009.

Subregulation 10(3) provides that the amendments made by Schedule 8 do not apply in relation to an application for a Witness Protection (Trafficking) (Temporary) (Class UM) visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act), before 1 July 2009.

Regulation 11 – Amendment of Migration Regulations 1994 – Schedule 9

Subregulation 11(1) provides that Schedule 9 amends the Migration Regulations.

Subregulation 11(2) provides that the amendment made by Schedule 9 applies in relation to an application for a visa made on or after 1 July 2009.

Regulation 12 – Amendment of Migration Regulations 1994 – Schedule 10

Subregulation 12(1) provides that Schedule 10 amends the Migration Regulations.

Subregulation 12(2) provides that the amendment made by Schedule 10 applies in relation to an application for a Subclass 462 (Work and Holiday) visa made on or after 1 July 2009 or made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act), before 1 July 2009.

Regulation 13 – Amendment of Immigration (Education) Regulations 1992 – Schedule 11

Subregulation 13(1) provides that Schedule 11 amends the Immigration (Education) Regulations 1992 (the Immigration (Education) Regulations).

Subregulation 13(2) provides that the amendments made by Schedule 11 apply in relation to an enrolment in a prescribed English course on or after 1 July 2009.

Regulation 14 – Amendment of Australian Citizenship Regulations 2007 – Schedule 12

Subregulation 14(1) provides that Schedule 12 amends the Australian Citizenship Regulations 2007 (the Citizenship Regulations).

Subregulation 14(2) provides that the amendment made by Schedule 12 applies in relation to an application made under Part 2 of the Australian Citizenship Act 2007 (the Citizenship Act) on or after 1 July 2009.

Regulation 15 – Amendment of Australian Citizenship Regulations 2007 – Schedule 13

Subregulation 15(1) provides that Schedule 13 amends the Citizenship Regulations.

Subregulation 15(2) provides that the amendments made by Schedule 13 apply in relation to an application made under the Citizenship Act on or after 1 July 2009.

Schedule 1 – Amendment of Migration Regulations 1994 – Sponsorship

Item [1] – After paragraph 1.20D(2)(c)

This item inserts a new paragraph 1.20D(2)(ca) in Division 1.4A of Part 1 of the Migration Regulations.

The insertion of new paragraph 1.20D(2)(ca) establishes a new criterion which must be satisfied by an applicant for approval as a standard business sponsor. A standard business sponsor is able to employ Subclass 457 (Temporary Business (Long Stay)) visa holders in Australia (subject to approval of a nominated activity and visa application).

Paragraph 1.20D(2)(ca) provides that an applicant for approval as a standard business sponsor must attest in writing that the applicant has a strong record of, or a demonstrated commitment to:

· employing local labour; and

· non-discriminatory employment practices.

The effect of this amendment is that an applicant for approval as a standard business sponsor will not meet the criteria for as approval as a standard business sponsor unless they make the attestation.

The purpose of this amendment is to ensure that employers seeking to access the pool of overseas labour have a strong record of, or a demonstrated commitment to, employing local labour and non-discriminatory work practices.

Schedule 2 – Amendment of Migration Regulations 1994 – Split visa applications

Item [1] – After regulation 1.20K

This item inserts new regulation 1.20KA which imposes a limitation on the approval of sponsorship of “relevant applicants”, which is defined as applicants for a Partner (Provisional) (Class UF) visa, Partner (Temporary) (Class UK) visa or Prospective Marriage (Temporary) (Class TO) visa. The limitation applies where the person proposing to sponsor the visa applicant was granted a “specified visa”, which is defined as a Subclass 143 (Contributory Parent) visa or a Subclass 864 (Contributory Aged Parent) visa, on or after 1 July 2009, and the proposed sponsor and relevant applicant were in a spouse or de facto relationship on or before the day the specified visa was granted.

The limitation on sponsorship applies for 5 years after the day the proposed sponsor was granted the specified visa.

The purpose of this regulation is to prevent the practice known as “split applications”. That is, where one member of a married or de facto couple applies for a contributory parent category visa claiming that their partner is not migrating, and once he or she is granted a permanent contributory parent visa, he or she sponsors their partner for a partner or prospective marriage visa. The effect of this practice is that the person who migrates on a partner or prospective marriage visa avoids paying the higher visa application charge for a contributory parent visa.

The limitation on sponsorship does not apply where the visa applicant had compelling reasons, other than reasons related to his or her financial circumstances, for

· not applying for the specified visa at the same time as the proposed sponsor; or

· applying for the specified visa at the same time as the proposed sponsor but withdrawing their application.

Compelling reasons may include where the visa applicant was unable to migrate with the proposed sponsor due to family illness or other obligations, other than financially-related obligations.

Item [2] – Schedule 2, after clauses 300.222, 309.222 and 820.221A

This item substitutes the existing notes after clauses 300.222, 309.222 and 820.221A, which refers to the sponsorship limitation in regulation 1.20J, with new notes referring to both the limitation in regulation 1.20J and the new limitation in regulation 1.20KA.

Schedule 3 – Amendments of Migration Regulations 1994 – Technical amendments

Item [1] – Schedule 2, subclauses 405.227(2) and (3)

This item omits the term “Gazette Notice” and inserts the term “instrument in writing” in subclauses 405.227(2) and (3) in Part 405 of Schedule 2 to the Migration Regulations.

Items [1] to [3] contain technical amendments to omit the words "Gazette Notice" and replace them with "instrument in writing". The purpose of the amendment is to remove the unintended requirement for publication in the Gazette (in addition to the requirement to register on the Federal Register of Legislative Instruments) which the words "Gazette Notice" in these provisions impose. The reason for the additional requirement to publish in the Gazette is that these references to Gazette Notice were inserted into the Migration Regulations after the commencement of the Legislative Instruments Act 2003. Replacement with the words "instrument in writing" removes the requirement to publish in the Gazette. The requirement to register on the Federal Register of Legislative Instruments remains.

Item [2] – Schedule 2, subclauses 405.228(2) and (3)

This item omits the term “Gazette Notice” and inserts the term “instrument in writing” in subclauses 405.228(2) and (3) in Part 405 of Schedule 2 to the Migration Regulations.

Item [3] – Further amendments – Gazette Notice

This item provides that the provisions of the Migration Regulations listed in the item are amended by omitting the term “a Gazette Notice” and substituting the term “an instrument in writing”.

Schedule 4 – Amendment of Migration Regulations 1994 – Subclass 410 visas

Item [1] – Schedule 1, sub-subparagraph 1217 (2) (a) (i) (A)

This item omits “1 March 2003” and inserts “1 July 2009”, in sub-subparagraph 1217 (2) (a) (i) (A) of Schedule 1 to the Migration Regulations.

The purpose of this amendment is to allow Subclass 410 visa holders to apply for a new Subclass 410 visa (which will not exceed the validity period of their existing visa) without charge.

This amendment will ensure that current Subclass 410 visa holders, who are eligible to apply for a Subclass 410 visa with unrestricted work rights from 1 July 2009, are not financially disadvantaged.

Item [2] – Schedule 2, clause 410.611

This item omits clause 410.611 of Schedule 2 to the Migration Regulations.

The purpose of this amendment is to remove the 20 hour a week work restriction so that holders of the Subclass 410 (Retirement) visa who are granted the visa after 1 July 2009 are given unrestricted work rights.

There are only a relatively small number of Subclass 410 (Retirement) visa holders and most do not undertake paid work. The purpose of these amendments is to allow holders of the Subclass 410 (Retirement) visa to make a greater contribution to their local community without fear of breaching a visa condition.

Item [3] – Schedule 2, after clause 410.612

This item inserts “Note There are no mandatory conditions” after clause 410.612 of Schedule 2 to the Migration Regulations.

The purpose of this amendment is to make clear that there are no mandatory conditions imposed.

Schedule 5 – Amendments of Migration Regulations 1994 – Approved Destination Status Scheme

Item [1] – Subparagraph 1.18(2)(b)(ii)

This item replaces “Minister.” with “Minister;” and is consequential to item [2].

Item [2] – After paragraph 1.18(2)(b)

This item inserts new paragraph 1.18(2)(c) which provides that an approved form includes a set of questions in a form that is stored in an electronic format and is approved by the Minister for use in making an application for the visa.

This item together with item [3] will provide for the making of an electronic form for use in making visa applications for a Subclass 676 (Tourist) visa under the Approved Destination Status Scheme.

Item [3] – Schedule 1, subparagraph 1218(1)(b)(iv)

This item inserts a new electronic form 48G, pursuant to item [2], for use in the making of visa applications for a Subclass 676 (Tourist) visa under the Approved Destination Status Scheme.

Schedule 6 – Amendment of Migration Regulations 1994 – Fees and charges

Item [1] – Amendments

This item amends fees and charges in Parts 1 and 5 of, and Schedule 1 to, the Migration Regulations to provide for the annual adjustment of specified fees and Visa Application Charges (VACs).

The majority of fees and VACs increase by 20 per cent. VACs which do not increase by 20 per cent include those that were substantially increased during the previous financial year. Those particular VACs are being increased by 4.4 per cent, in accordance with changes to the Consumer Price Index (CPI). A table of those amendments is set out below.

Visa Application Charge (VAC)	Description	Provision	Omit	Insert
Cultural/Social (Temporary) (Class TE)	Temporary Resident	Subparagraph 1205(2)(a)(iv)	$2 500	$2 600
		Subparagraph 1205(2)(a)(iva)	$2 500	$2 600
		Subparagraph 1205(2)(a)(v)	$250	$260
Domestic Worker (Temporary) (Class TG)	Temporary Resident	Paragraph 1207(2)(a)	$250	$260
Educational (Temporary) (Class TH)	Temporary Resident	Subparagraph 1208(2)(a)(ii)	$250	$260
Medical Practitioner (Temporary) (Class UE)	Temporary Resident	Paragraph 1214AA(2)(a)	$250	$260
Retirement (Temporary) (Class TQ)	Temporary Resident	Subparagraph 1217(2)(a)(ii)	$250	$260
Sponsored (Visitor) (Class UL)	Visitor	Subparagraph 1217A(2)(a)(i)	$100	$105
Tourist (Class TR)	Visitor	Sub-subparagraph 1218(2)(a)(ii)(A)	$100	$105
Tourist (Class TR)	Visitor	Sub-subparagraph 1218(2)(a)(ii)(B)	$240	$250
Temporary Business Entry (Class UC)	Temporary Resident	Subparagraph 1223A(2)(a)(i)	$100	$105
Temporary Business Entry (Class UC)	Temporary Resident	Subparagraph 1223A(2)(a)(iii)	$250	$260

The second instalments of the VAC for Contributory Parent and Contributory Aged Parent visas increase in accordance with the Contributory Parent Visa Composite Index (CPVCI), calculated by the Australian Government Actuary, which is 4.9 per cent for the 2009-10 financial year. A table of those amendments is set out below.

Visa Application Charge (VAC)	Description	Provision	Omit	Insert
Contributory Parent (Migrant) (Class CA)	Permanent Resident	Subparagraph 1130(2)(b)(i)	$13 090	$13 730
		Sub-sub-subparagraph 1130(2)(b)(ia)(A)(III)	$13 090	$13 730
		Subparagraph 1130(2)(b)(iia)	$13 090	$13 730
		Subparagraph 1130(2)(b)(iib)	$11 850	$12 430
		Sub-subparagraph 1130(2)(b)(iii)(B)	$1 415	$1 485
		Subparagraph 1130(2)(b)(iv)	$32 725	$34 330
Contributory Aged Parent (Residence) (Class DG)	Permanent Resident	Subparagraph 1130A(2)(b)(i)	$13 090	$13 730
		Sub-sub-subparagraph 1130A(2)(b)(ia)(A)(III)	$13 090	$13 730
		Subparagraph 1130A(2)(b)(iia)	$13 090	$13 730
		Subparagraph 1130A(2)(b)(iib)	$11 155	$11 700
		Sub-subparagraph 1130A(2)(b)(iii)(B)	$1 415	$1 485
		Subparagraph 1130A(2)(b)(iv)	$32 725	$34 330
Contributory Parent (Temporary) (Class UT)	Temporary Resident	Sub-subparagraph 1221(2)(b)(i)(B)	$1 415	$1 485
Contributory Parent (Temporary) (Class UT)	Temporary Resident	Subparagraph 1221(2)(b)(iii)	$19 635	$20 595
Contributory Aged Parent (Temporary) (Class UU)	Temporary Resident	Sub-subparagraph 1221A(2)(b)(i)(B)	$1 415	$1 485
Contributory Aged Parent (Temporary) (Class UU)	Temporary Resident	Subparagraph 1221A(2)(b)(iii)	$19 635	$20 595

The first instalments of the VAC for Resident Return visas increase by 10 per cent. A table of those amendments is set out below.

Visa Application Charge (VAC)	Description	Provision	Omit	Insert
Return (Residence) (Class BB)	Resident Return	Subparagraph 1128(2)(a)(i)	$240	$260
Return (Residence) (Class BB)	Resident Return	Subparagraph 1128(2)(a)(ii)	$240	$260

All increases, except the Resident Return VAC increases, are rounded to a multiple of $5.00 according to the following methodology:

· if the amount of the charge calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;

· in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The Resident Return VAC increases are rounded in accordance with the government’s policy to align the amount of the Resident Return VAC with the amount of an Australian citizenship application fee.

The amount of the VAC increase under the Migration Regulations does not exceed the applicable charge limit set out in sections 5 and 6 of the Migration (Visa Application) Charge Act 1997.

Schedule 7 – Amendment of Migration Regulations 1994 – Change of sponsorship

Item [1] – Subregulation 1.20K(1)

This item substitutes a new subregulation 1.20K(1) which provides that the Minister must not grant a Subclass 115 or a Subclass 835 visa to an applicant, if the Minister is satisfied that:

a Subclass 104 visa (Preferential Family), a Subclass 115 visa (Remaining Relative), a Subclass 806 visa (Family), or a Subclass 835 visa (Remaining Relative) has previously been granted to the person (Person S) who is the sponsor of the applicant at the time of decision in relation to the current application; or
a Subclass 104 visa, a Subclass 115 visa, a Subclass 806 visa, or a Subclass 835 visa has previously been granted to another person who was sponsored or nominated by Person S at the time of decision in relation to the previous application, and on the basis of sponsorship or nomination by Person S.

These limitations on sponsorship only apply where a sponsor was the sponsor at the time of a decision. That is, the changes do not apply to limit sponsorship where a sponsorship was in force at the time of application, and a different sponsor was in force at the time of decision.

Item [2] – Schedule 2, clauses 103.222 and 103.223

This item substitutes clause 103.222 to provide the requirement that a sponsorship of the kind referred to in clause 103.212 is in force, whether or not the sponsor was the sponsor at the time of application.

This item also has the effect of removing clause 103.223, so that the balance of family test will not be a criterion to be satisfied at time of decision.

Applicants are generally able to change their sponsor for all six Parent and Remaining Relative visa subclasses after they have lodged an application. Given that there are long delays in finalising visa applications, especially within the Parent category visas, applicants are being disadvantaged when their sponsor dies or is no longer able to continue to sponsor the applicant. This change will ensure that in these cases, where a change of sponsor is required or essential, the visa applicant will no longer be disadvantaged by their inability to change their sponsor, as long as there is another sponsor able to meet the sponsorship requirements. Furthermore, the transitional arrangement provisions will ensure that applicants who have applications that are not finally determined, will also benefit from this change.

Under these amendments, the balance of family test will become a time of application criterion only. The requirement to satisfy the balance of family test criterion at the time of decision will be removed. This legislative change will ensure that all six Parent visa subclasses are consistent in relation to the balance of family test requirement. Furthermore, the transitional arrangement provisions will ensure that applicants who have applications that are not finally determined, will also benefit from this change.

Item [3] – Schedule 2, clause 103.312

This item substitutes clause 103.312 to provide that at time of application a sponsorship of the kind mentioned in clause 103.212 of the person who satisfies the primary criteria must be approved by the Minister, be in force, and include sponsorship of the applicant.

This provides that at the time of application there must be a sponsorship in force for the primary applicant, and it must include the secondary applicant.

Item [4] – Schedule 2, clause 103.322

This item substitutes clause 103.322 to provide that at time of decision a sponsorship of the kind mentioned in clause 103.212 of the person who satisfies the primary criteria must be approved by the Minister, be in force, and include sponsorship of the applicant. This applies whether or not the sponsor was the sponsor when the Minister first approved a sponsorship.

Similar to item [2] above, this ensures that a change of sponsor can occur up until the time of decision for a secondary applicant.

Item [5] – Schedule 2, clause 115.222

Similar to item [2] above, this item substitutes clause 115.222 to provide that at time of application a sponsorship of the kind mentioned in clause 115.212 is in force, whether or not the sponsor was the sponsor at time of application. The note clarifies that the applicant may seek the Minister’s approval for a change of sponsor, as long as the new sponsor meets the description in clause 115.212.

Item [6] – Schedule 2, clause 115.312

Similar to item [3] above, this item substitutes clause 115.312 to provide that at time of application a sponsorship of the kind mentioned in clause 115.212 of the person who satisfies the primary criteria must be approved by the Minister, be in force, and include sponsorship of the applicant.

Item [7] – Schedule 2, clause 115.322

Similar to item [4] above, this item substitutes clause 115.322 to provide that at time of decision a sponsorship of the kind mentioned in clause 115.212 of the person who satisfies the primary criteria must be approved by the Minister, be in force, and include sponsorship of the applicant. This applies whether or not the sponsor was the sponsor at the time of application.

Item [8] – Schedule 2, paragraph 143.212 (4)(a)

This item substitutes paragraph 143.212(4)(a) to provide that the applicant is taken to be sponsored in accordance with clause 143.212 if the applicant is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; or both was the holder of a Subclass 173 visa and is the holder of a substituted Subclass 676 visa (Tourist) at the time of application.

This effect of this item is to allow visa sponsorship to be satisfied, in limited circumstances, where a sponsor has died.

Item [9] – Schedule 2, clauses 143.222 and 143.223

Similar to item [2] above, this item substitutes clause 143.222 to provide that if a sponsorship of the kind mentioned in subclause143.212 (2) or (3) was in force at the time of application, a sponsorship of that kind, approved by the Minister, must be in force in relation to the sponsor at the time of application, or another sponsor who meets those requirements, whether or not the sponsor was the sponsor at the time of application.

This item also inserts a new clause 143.222A which provides that if clause 143.222 does not apply:

the applicant was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application; and
a sponsor of the applicant who usually resides in Australia dies before a decision is made to grant, or to refuse to grant, the Subclass 143 (Contributory Parent) visa; and
there is no other sponsor available who meets the requirements set out in subclause 143.212 (2) or (3).

This item also omits clause 143.223 so that the balance of family test will no longer apply to an applicant who is neither the holder of a Subclass 173 visa, nor the holder of a substituted Subclass 676 visa.

Item [10] – Schedule 2, clauses 173.222 and 173.223

Similar to item [2] above, this item substitutes clause 173.222 to provide the requirement that a sponsorship of the kind referred to in clause 173.212 is in force, whether or not the sponsor was the sponsor at the time of application.

This item also has the effect of removing clause 173.223, so that the balance of family test will not be a criterion to be satisfied at the time of decision.

Item [11] – Schedule 2, clause 173.312

Similar to item [3] above, this item substitutes clause 173.312 to provide the requirement that a sponsorship of the kind referred to in clause 173.212 is in force and includes sponsorship of the applicant.

Item [12] – Schedule 2, clause 173.322

Similar to item [4] above, this item substitutes clause 173.322 to provide the requirement that a sponsorship of the kind referred to in clause 173.212 is in force and includes sponsorship of the applicant, whether or not the sponsor was the sponsor at the time of application.

Item [13] – Schedule 2, after clause 804.213

This item inserts a new 804.214 that provides that if the applicant is not the holder of a substituted subclass 676 visa (Tourist), the applicant satisfies the balance of family test.

Item [14] – Schedule 2, clauses 804.222 and 804.223

Similar to item [2] above, this item substitutes clause 804.222 to provide the requirement that a sponsorship of the kind referred to in clause 804.212 is in force, whether or not the sponsor was the sponsor at the time of application.

This item also has the effect of removing clause 804.223, so that the balance of family test will not be a criterion to be satisfied at time of decision.

Item [15] – Schedule 2, clause 804.312

Similar to item [3] above, this item substitutes clause 804.312 to provide the requirement that a sponsorship of the kind referred to in clause 804.212 is in force and include sponsorship of the applicant.

Item [16] – Schedule 2, clause 804.325

Similar to item [4] above, this item substitutes clause 804.325 to provide the requirement that a sponsorship of the kind referred to in clause 804.212 is in force and include sponsorship of the applicant, whether or not the sponsor was the sponsor at the time of application.

Item [17] – Schedule 2, clause 835.227

Similar to item [3] above, this item substitutes clause 835.227 to provide the requirement that a sponsorship of the kind referred to in clause 835.213 is in force and include sponsorship of the applicant , whether or not the sponsor was the sponsor at the time of application.

Item [18] – Schedule 2, clause 835.312

Similar to item [3] above, this item substitutes clause 835.312 to provide the requirement that a sponsorship of the kind referred to in clause 835.213 is in force, and include sponsorship of the applicant.

Item [19] – Schedule 2, clause 835.325

Similar to item [4] above, this item substitutes clause 835.325 to provide the requirement that a sponsorship of the kind referred to in clause 835.213 is in force and include sponsorship of the applicant, whether or not the sponsor was the sponsor at the time of application.

Item [20] – Schedule 2, paragraph 864.213 (4)(a)

This item substitutes paragraph 864.213(4)(a) to provide that the applicant is taken to be sponsored in accordance with clause 864.213 if the applicant is the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application; or both was the holder of a Subclass 884 visa and is the holder of a substituted Subclass 676 visa at the time of application.

The effect of this item is to allow visa sponsorship to be satisfied, in limited circumstances, where a sponsor has died.

Item [21] – Schedule 2, clauses 864.222

Similar to item [2] above, this item substitutes clause 864.222 to provide that if a sponsorship of the kind mentioned in 864.212 (2) or (3) was in force at the time of application, a sponsorship of that kind, approved by the Minister, must be in force in relation to the sponsor at the time of application, or another sponsor who meets those requirements whether or not the sponsor was the sponsor at the time of application.

This item also inserts a new clause 864.222A which provides that if clause 864.222 does not apply, the applicant:

was the holder of a Subclass 884 (Contributory Aged Parent (Temporary)) visa at the time of application; and
a sponsor of the applicant who usually resides in Australia dies before a decision is made to grant, or to refuse to grant, the Subclass 864 (Contributory Aged Parent) visa, and
there is no other sponsor available who meets the requirements set out in subclause 864.212 (2) or (3).

Item [22] – Schedule 2, clause 864.223, table, item 1, column 3

This item removes the balance of family test from the time of decision criteria at item 1 of the table.

Item [23] – Schedule 2, clauses 884.222 and 884.223

Similar to item [2] above, this item substitutes clause 884.222 to provide the requirement that a sponsorship of the kind referred to in clause 884.212 is in force, whether or not the sponsor was the sponsor at the time of application.

This item also has the effect of removing clause 884.223, so that the balance of family test will not be a criterion to be satisfied at time of decision

Item [24] – Schedule 2, clause 884.312

Similar to item [3] above, this item substitutes clause 884.312 to provide the requirement that a sponsorship of the kind referred to in clause 884.212 is in force, and include sponsorship of the applicant.

Item [25] – Schedule 2, paragraph 884.322(a)

Similar to item [4] above, this item substitutes paragraph 834.322(a) to provide the requirement that a sponsorship of the kind referred to in clause 884.212 is in force and include sponsorship of the applicant, whether or not the sponsor was the sponsor at the time of application.

Schedule 8 – Amendments of Migration Regulations 1994 – Witness protection visas

Item [1] – Subregulation 1.12AA(2)

This item omits subregulation 1.12AA(2) of Part 1 to the Migration Regulations.

Subregulation 1.12AA(2) described when a person is considered to be a member of the immediate family of an applicant for a Witness Protection (Trafficking) (Permanent)
(Class DH) visa.

The effect of this amendment is to remove the description of when a person is considered to be a member of the immediate family of an applicant for a Witness Protection (Trafficking) (Permanent) (Class DH) visa from subregulation 1.12AA(2) of Part 1 to the Migration Regulations. This amendment is consequential to the repeal of Subclass 787 – Witness Protection (Trafficking) (Temporary) (Class UM) visa in item [26], which will reduce the Witness Protection (Trafficking) visa process from a two-stage to a one-stage process.

Item [2] – Regulation 2.07AJ

This item omits regulation 2.07AJ in Part 2 of the Migration Regulations.

Regulation 2.07AJ prescribed for the purposes of subsection 46(2) of the Migration Act how an application for a Witness Protection (Trafficking) (Temporary) (Class UM) visa was to be validly made.

This amendment is consequential to the repeal of Subclass 787 – Witness Protection (Trafficking) (Temporary) (Class UM) visa in item [26], which will reduce the Witness Protection (Trafficking) visa process from a two-stage to a one-stage process.

Item [3] – Paragraph 2.07AK (3)(b)

This item omits paragraph 2.07AK(3)(b) in Part 2 of the Migration Regulations.

Paragraph 2.07AK(3)(b) provides that the person held a Witness Protection (Trafficking) (Temporary) (Class UM) visa.

This amendment is consequential to the repeal of Subclass 787 - Witness Protection (Trafficking) (Temporary) (Class UM) visa in item [26], which will reduce the Witness Protection (Trafficking) visa process from a two-stage to a one-stage process.

Item [4] – Paragraph 2.07AK(3)(c)

This item inserts paragraph 2.07AK(3)(c) in Part 2 of the Migration Regulations.

Paragraph 2.07AK(3)(c) provides that the requirements for this subregulation are met if, amongst other requirements, the Attorney-General has issued a certificate in relation to the person applying for a Witness Protection (Trafficking) (Permanent) (Class DH) visa.

New paragraph 2.07AK(3)(c) provides that the requirements for this paragraph are met if, amongst other requirements, the Attorney-General (or a person authorised by the Attorney-General) has issued a certificate in relation to the person applying for a Witness Protection (Trafficking) (Permanent) (Class DH) visa.

The effect of this amendment is to enable the Attorney-General to authorise a person to issue a certificate on his behalf.

Item [5] – Subparagraphs 2.07AK(3)(c)(i) and (ii)

This item omits the word “significant” from subparagraphs 2.07AK(3)(c)(i) and (ii) in Part 2 of the Migration Regulations.

Subparagraphs 2.07AK(3)(c)(i) and (ii) provide that the Attorney-General has issued a certificate in relation to the person to the effect that the person has made a significant contribution to, and cooperated closely with, the prosecution of a person who was alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions (whether or not the person was convicted); or the person has made a significant contribution to, and cooperated closely with, an investigation in relation to which the Director of Public Prosecutions has decided not to prosecute a person who was alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions.

New subparagraphs 2.07AK(3)(c)(i) and (ii) provide that the Attorney-General (or a person authorised by the Attorney-General) has issued a certificate in relation to the person to the effect that the person has made a contribution to, and cooperated closely with, the prosecution of a person who was alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions (whether or not the person was convicted); or the person has made a contribution to, and cooperated closely with, an investigation in relation to which the Director of Public Prosecutions has decided not to prosecute a person who was alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions.

The effect of this amendment is to lower the certification threshold for the Attorney-General (or a person authorised by the Attorney-General) from “a significant contribution” to a “contribution”.

Item [6] – Paragraph 2.07AK(3)(h)

This item substitutes paragraph 2.07AK(3)(h) in Part 2 of the Migration Regulations with new paragraph 2.07AK(3)(h).

Paragraph 2.07AK(3)(h) provides that the requirements of the subregulation are met if, amongst other requirements, the person indicates, in writing, to an officer that he or she accepts the Australian Government’s offer of a stay in Australia.

New paragraph 2.07AK(3)(h) provides that the requirements of the subregulation are met if, amongst other requirements, the person indicates in writing that he or she accepts the offer, not later than: 28 days after the person is taken to have received the offer; or a later date determined by an authorised officer.

The effect of this amendment is to ensure that a person accepts the offer of stay in Australia within the set time limit of 28 days or a date that will be determined by an authorised officer. The purpose of this amendment is to ensure that a person who has been made a permanent offer of stay is aware of the time limits associated with acceptance of that offer of stay and does not unnecessarily delay acceptance of that offer.

Item [7] – 2.07AK(4)(b)

This item omits the reference to “paragraph (3)(h); and” from paragraph 2.07AK(4)(b) in Part 2 of the Migration Regulations and inserts a new reference to “paragraph (3)(h).” in paragraph 2.07AK(4)(b).

This amendment is consequential to the amendments made by item [6] above.

Item [8] – Paragraphs 2.07AK(4)(c) and (d)

This item omits paragraphs 2.07AK(4)(c) and (d) in Part 2 of the Migration Regulations.

Paragraph 2.07AK(4)(c) provided that the person held a Witness Protection (Trafficking) (Temporary) (Class UM) visa. Paragraph 2.07AK(4)(d) provided that the first person is in Australia.

Item [9] – After subregulation 2.07AK(4)

This item inserts subregulation 2.07AK(5) in Part 2 of the Migration Regulations.

New subregulation 2.07AK(5) provides that for subregulation 2.07AK(4), the first person may be in or outside Australia.

The effect of this amendment is to extend the offer of a Subclass 852 – Witness Protection (Trafficking) (Permanent) (Class DH) visa to immediate family members who are outside Australia when making an application.

Item [10] – Paragraph 2.08AB(b)

This item substitutes the words “visa; or” in paragraph 2.08AB(b) in Part 2 of the Migration Regulations with the new word “visa.”.

This amendment is consequential to the amendment made by item [11] below.

Item [11] – Paragraph 2.08AB(c), not including the note

This item omits paragraph 2.08AB(c) in Part 2 of the Migration Regulations.

Paragraph 2.08AB(c) provides, for paragraph 46(2A)(a) of the Migration Act that the prescribed circumstance is that the application is for a visa that is not a Witness Protection (Trafficking) (Temporary) (Class UM) visa.

Item [12] – Subparagraph 2.08AC(a)(ii)

This item substitutes the words “visa; or” in subparagraph 2.08AC(a)(ii) with the new words “visa; and”.

The amendment made by this item is consequential to the amendment made by item [13].

Item [13] – Subparagraph 2.08AC(a)(iii)

This item omits subparagraph 2.08AC(a)(iii).

Subparagraph 2.08AC(a)(iii) provides, for subsection 46(2C) of the Migration Act that the prescribed circumstance is that the application is for a visa that is not a Witness Protection (Trafficking) (Temporary) (Class UM) visa.

Item [14] – Sub-subparagraph 2.20(14)(a)(ii)(E)

This item substitutes sub-subparagraph 2.20(14)(a)(ii)(E) in Part 2 of the Migration Regulations with new sub-subparagraph 2.20(14)(a)(ii)(E).

Sub-subparagraph 2.20(14)(a)(ii)(E) provides that the non-citizen is a person of interest in relation to an offence, or alleged offence, involving: people trafficking; or sexual servitude; or deceptive recruiting.

New sub-subparagraph 2.20(14)(a)(ii)(E) provides the non-citizen has been identified as a suspected victim of human trafficking.

The effect of this amendment is to clarify who is eligible to be granted a bridging visa under subregulation 2.20(14) by excluding perpetrators, or alleged perpetrators, of human trafficking offences. The term human trafficking covers the offences identified in the current sub-subparagraph.

Item [15] – Subregulation 2.20B(2)

This item omits the words “had not been immigration cleared” from subregulation 2.20B(2) in Part 2 of the Migration Regulations and inserts new words “had been immigration cleared”.

Subparagraph 2.20B(2) provides that, despite regulation 2.07 and Schedule 1, and as an alternative to item 1306 of Schedule 1, an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen to whom subregulation 2.20(14) or (15) applies, or a non-citizen to whom subregulation 2.20(15) would have applied if the non-citizen had not been immigration cleared.

New subparagraph 2.20B(2) provides that, despite regulation 2.07 and Schedule 1, and as an alternative to item 1306 of Schedule 1, an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen to whom subregulation 2.20(14) or (15) applies, or a non-citizen to whom subregulation 2.20(15) would have applied if the
non-citizen had been immigration cleared.

The effect of this amendment is to ensure that an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen, prescribed under subregulation 2.20(14) or subregulation 2.20(15), as though the non-citizen had been immigration cleared.

Item [16] – Paragraph 2.21B(1)(b)

This item substitutes paragraph 2.21B(1)(b) in Part 2 of the Migration Regulations with new paragraphs 2.21B(1)(b) and 2.21B(1)(c).

Paragraph 2.21B(1)(b) provides that regulation 2.21B applies if a non-citizen who is in Australia, but not in immigration clearance, has made a valid oral application for a Tourist (Class TR) visa.

New paragraphs 2.21B(1)(b) and 2.21B(1)(c) provide that regulation 2.21B applies if a
non-citizen who is in Australia, but not in immigration clearance, has made a valid oral application for a Tourist (Class TR) visa; or a valid application under regulation 2.07AK.

The effect of this amendment is to ensure that a non-citizen who is in Australia, but not in immigration clearance and has made a valid application under regulation 2.07AK for a Witness Protection (Trafficking) (Permanent) (Class DH) visa is eligible for grant of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE) visas without making an application.

Item [17] – Schedule 1, item 1224AA

This item omits item 1224AA in Part 2 of Schedule 1 to the Migration Regulations.

Item 1224AA sets out the requirements necessary to make a valid application for a Witness Protection (Trafficking) (Temporary) (Class UM) visa. As Subclass 787 (Witness Protection (Trafficking) (Temporary) (Class UM) visas are being repealed by item [26] of these amendments, item 1224AA can also be repealed.

The effect of this item is to remove Subclass 787 - Witness Protection (Trafficking) (Temporary) (Class UM) visas. Consequently, the reference to this subclass in Schedule 1 is no longer necessary.

Item [18] – Schedule 1, paragraph 1306(3)(c)

This item substitutes paragraph 1306(3)(c) in Part 3 of Schedule 1 to the Migration Regulations with new paragraph 1306(3)(c).

Paragraph 1306(3)(c) provides that a requirement necessary to make a valid application for a Bridging F (Class WF) visa is that an applicant does not hold a Bridging F (Class WF) visa; and has not held a Bridging F (Class WF) visa since he or she last entered Australia.

New paragraph 1306(3)(c) provides that a requirement necessary to make a valid application for a Bridging F (Class WF) visa is that one of the following subparagraphs applies in relation to the applicant:

· the applicant does not hold a visa and has not held a Bridging F (Class WF) visa since he or she last entered Australia;

· the applicant does not hold a visa, and has held one Bridging F (Class WF) visa since last entering Australia, and has not held another visa since the visa mentioned above; or

· the applicant holds a Bridging F (Class WF) visa, which is the first Bridging F (Class WF) visa held since he or she last entered Australia.

The effect of this amendment is to enable a valid application for a Bridging F (Class WF) visa to be made by:

· an unlawful non-citizen who has not held a Bridging F (Class WF) visa since last entering Australia;

· an unlawful citizen who has held one Bridging F (Class WF) visa since last entering Australia and has not held another visa since holding that Bridging F (Class WF) visa;

· a lawful citizen who holds a Bridging F (Class WF) visa which is the first Bridging F visa (Class WF) held since he or she last entered Australia.

The purpose of this amendment is to allow flexibility in the grant of Bridging F (Class WF) visas; and to enable the grant of a second Bridging F (Class WF) visa to suspected victims of human trafficking.

Item [19] – Schedule 1, paragraph 1306(3)(d)

This item substitutes paragraph 1306(3)(d) in Part 3 of Schedule 1 to the Migration Regulations with new paragraph 1306(3)(d).

Paragraph 1306(3)(d) provides that a requirement necessary to make a valid application for a Bridging F (Class WF) visa is that either an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that the applicant is a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting; or the applicant is a member of the immediate family of a person who an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, is a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting.

New paragraph 1306(3)(d) provides that a requirement necessary to make a valid application for a Bridging F (Class WF) visa is that either an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that the applicant has been identified as a suspected victim of human trafficking; or the applicant is a member of the immediate family of a person who an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration in writing, has been identified as a suspected victim of human trafficking.

The effect of this amendment is to clarify who is eligible to apply for a Bridging F (Class WF) visa by excluding perpetrators, or alleged perpetrators, of human trafficking offences. The term human trafficking covers the offences identified in the current paragraph.

Item [20] – Schedule 2, clause 060.221

This item substitutes clause 060.221 in Part 060 of Schedule 2 to the Migration Regulations with new clause 060.221.

Clause 060.221 provides that the Minister is satisfied that the applicant is a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting.

New clause 060.221 provides that the Minister is satisfied that the applicant has been identified as a suspected victim of human trafficking.

The effect of this amendment is to clarify who is eligible for grant of a Bridging F (Class WF) visa by excluding perpetrators, or alleged perpetrators, of human trafficking offences. The term human trafficking covers the offences identified in the current clause.

Item [21] – Schedule 2, clause 060.322

This item substitutes clause 060.322 in Part 060 of Schedule 2 to the Migration Regulations with new clause 060.322.

Clause 060.322 provides that the Minister is satisfied that the applicant continues to be a member of the immediate family of a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting.

New clause 060.322 provides that the Minister is satisfied that the applicant continues to be a member of the immediate family of a person that has been identified as a suspected victim of human trafficking.

The effect of this amendment is to clarify who is eligible for grant of a Bridging F (Class WF) visa by excluding members of the immediate family of perpetrators, or alleged perpetrators, of human trafficking offences. The term human trafficking covers the offences identified in the current clause.

Item [22] – Schedule 2, paragraph 060.411(3)(a)

This item omits the words “had not been immigration cleared” in paragraph 060.411(3)(a) in Part 060 of Schedule 2 to the Migration Regulations and inserts the new words “had been immigration cleared”.

Paragraph 060.411(3)(a) provides that an applicant to whom subregulation 2.20(15) would apply if he or she had not been immigration cleared must be in Australia when the visa is granted.

New paragraph 060.411(3)(a) provides that an applicant to whom subregulation 2.20(15) would apply if he or she had been immigration cleared must be in Australia when the visa is granted.

The effect of this amendment is to ensure that an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen, prescribed under subregulation 2.20(15), as though the non-citizen had been immigration cleared.

Item [23] – Schedule 2, subparagraph 060.511(2)

This item omits the words “had not been immigration cleared” from subparagraph 060.511(2) in Part 060 of Schedule 2 to the Migration Regulations and inserts new words “had been immigration cleared” in subparagraph 060.511(2).

Subparagraph 060.511(2) specifies when the visa is in effect for a person to whom subregulation 2.20(15) applies, or to whom subregulation 2.20(15) would apply if he or she had not been immigration cleared, and who made an application in accordance with subregulation 2.20B(2) – bridging visa.

New subparagraph 060.511(2) specifies when the visa is in effect for a person to whom subregulation 2.20(15) applies, or to whom subregulation 2.20(15) would apply if he or she had been immigration cleared, and who made an application in accordance with subregulation 2.20B(2) – bridging visa.

The effect of this amendment is to ensure that an application for a Bridging F (Class WF) visa is taken to have been validly made by a non-citizen, prescribed under subregulation 2.20(15), as though the non-citizen had been immigration cleared.

Item [24] – Schedule 2, subparagraph 060.511(3)(b)(ii)

This item omits the number “30” from subparagraph 060.511(3)(b)(ii) in Part 060 of Schedule 2 to the Migration Regulations and inserts the number “45” in subparagraph 060.511(3)(b)(ii).

Subparagraph 060.511(3)(b)(ii) permits a Bridging F (Class WF) visa holder to remain in Australia until the end of 30 days after the date of grant.

New subparagraph 060.511(3)(b)(ii) permits a Bridging F (Class WF) visa holder to remain in Australia until the end of 45 days after the date of grant.

The purpose of this amendment is to extend the validity of the Bridging F (Class WF) visa from 30 days to 45 days.

Item [25] – Schedule 2, subparagraphs 060.511(3)(b)(iii) and (iv)

This item substitutes subparagraphs 060.511(3)(b)(iii) and (iv) of Schedule 2 to the Migration Regulations with new subparagraphs 060.511(3)(b)(iii) and (iv).

Subparagraph 060.511(3)(b)(iii) provides that if an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306(3)(d) of Schedule 1 that the holder is a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting; and an officer of that police force tells Immigration, in writing, that the holder is no longer a person of interest in relation to the offence or the alleged offence; the Bridging F (Class WF) visa holder is permitted to remain in Australia until the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Migration Act, that the holder is no longer a person of interest.

Subparagraph 060.511(3)(b)(iv) provides that if a holder is a member of the immediate family of a person; and an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306(3)(d) of Schedule 1 that the person is a person of interest in relation to an offence or an alleged offence involving people trafficking; or sexual servitude; or deceptive recruiting; and an officer of that police force tells Immigration, in writing, that the person is no longer a person of interest in relation to the offence or the alleged offence; the Bridging F (Class WF) visa holder is permitted to remain in Australia until the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Migration Act, that the person is no longer a person of interest.

New subparagraph 060.511(3)(b)(iii) provides that if an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306(3)(d) of Schedule 1 that the holder has been identified as a suspected victim of human trafficking; and an officer of that police force tells Immigration, in writing, that the holder is no longer identified as a suspected victim; the Bridging F (Class WF) visa holder is permitted to remain in Australia until the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Migration Act, that the holder is no longer identified as a suspected victim.

New subparagraph 060.511(3)(b)(iv) provides that if a holder is a member of the immediate family of a person; and an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, under paragraph 1306(3)(d) of Schedule 1 that the person has been identified as a suspected victim of human trafficking; and an officer of that police force tells Immigration, in writing, that the person is no longer identified as a suspected victim; the Bridging F (Class WF) visa holder is permitted to remain in Australia until the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Migration Act, that the person is no longer identified as a suspected victim.

The effect of this amendment is to clarify who is eligible for a Bridging F (Class WF) visa by excluding perpetrators, or alleged perpetrators, of human trafficking offences. The term “human trafficking” covers the offences identified in the current clause.

Item [26] – Schedule 2, Part 787

This item omits Part 787 of Schedule 2 to the Migration Regulations.

The effect of this amendment is to repeal Part 787 of Schedule 2 to the Migration Regulations that contains Subclass 787 – Witness Protection (Trafficking) (Temporary) (Class UM) visa from the Migration Regulations. The Witness Protection (Temporary) (Trafficking) (Class UM) visa is being repealed in order to simplify the Witness Protection (Trafficking) visa process from a two-stage to a one-stage process.

Item [27] – Schedule 2, clause 852.221

This item omits clause 852.221 of Schedule 2 to the Migration Regulations.

Clause 852.221 provides that the applicant has held a Witness Protection (Trafficking) (Temporary) (Class UM) visa for at least 2 years.

This amendment is consequential to the repeal of Subclass 787 – Witness Protection (Trafficking) (Temporary) (Class UM) visa in item [26] to the Migration Regulations and will reduce the Witness Protection (Trafficking) visa process from a two-stage to a one-stage process.

Item [28] – Schedule 2, clause 852.411

This item substitutes clause 852.411 in Part 852 of Schedule 2 to the Migration Regulations with new clause 852.411.

Clause 852.411 provides that the applicant must be in Australia when the visa is granted.

New clause 852.411 provides that the applicant may be in or outside Australia when the visa is granted.

The purpose of this amendment is to allow an applicant for a Subclass 852 – Witness Protection (Trafficking) (Permanent) (Class DH) visa to be either in or outside Australia when the visa is granted.

Item [29] – Schedule 2, division 852.6

This item substitutes division 852.6 in Part 852 of Schedule 2 to the Migration Regulations with new division 852.6.

Division 852.6 provides there are nil conditions that attach to the Subclass 852 - Witness Protection (Trafficking) (Permanent) (Class DH) visa.

New division 852.6 inserts new clause 852.611 that provides that if the applicant is outside Australia when the visa is granted, first entry must be made before a date specified for the purpose by the Minister.

The effect of this amendment is to enable the Minister to specify a time limit for when an applicant must first enter Australia once being granted a Subclass 852 – Witness Protection (Trafficking) (Permanent) (Class DH) visa.

Schedule 9 – Amendment of Migration Regulations 1994 – Subclass 050 visas

Item [1] – Subregulation 2.43(3), definition of relevant visa

This item inserts a new paragraph 2.43(3)(aa) in Part 2 of the Migration Regulations.

New paragraph 2.43(3)(aa) lists Subclass 050 – Bridging (General) as a “relevant visa”.

The basis for this amendment is that under the current regulations, a determination made by the Foreign Minister under either Public Interest Criterion 4003(a) or regulation 2.43 requires the Minister for Immigration and Citizenship to cancel the current visa held, and cancel any future visa granted, to the individual, or to refuse any visa application, other than a relevant visa, until such time as the Foreign Minister revokes the determination.

In circumstances where a person, by virtue of a determination by the Foreign Minister under regulation 2.43 or Public Interest Criterion 4003(a), has had their visa refused or cancelled, there may be capacity for review under Australian migration law. Generally, persons in this situation are granted an appropriate bridging visa until the review process is concluded. Regulation 2.43 currently applies to subclass 050 and requires visas to be cancelled due to the existence of the Foreign Minister’s foreign policy determination.

The effect of this amendment is to include Subclass 050 (Bridging (General)) visas as a “relevant visa” so that regulation 2.43 does not apply, and that a Subclass 050 may be granted where a Foreign Minister’s determination is in existence.

Schedule 10 – Amendment of Migration Regulations 1994 – Subclass 462 visas

Item [1] – Schedule 2, paragraph 462.511(a)

This item omits “3 months” and inserts “12 months”, in paragraph 462.511 (a) of Schedule 2 to the Migration Regulations.

The purpose of this amendment is to extend, from 3 months to 12 months, the period of time after the grant of a Subclass 462 (Work and Holiday) visa in which an applicant who is outside Australia at the time of grant may travel to and enter Australia. The intention behind paragraph 462.511(a) is to provide applicants with sufficient time to arrange their affairs before travelling to Australia.

The purpose of both the Subclass 462 (Work and Holiday) visa and the Subclass 417 (Working Holiday) visa is to give young people an opportunity to holiday in Australia and supplement their funds through short term work. This amendment will more closely align the Subclass 462 (Work and Holiday) visa with the Subclass 417 (Working Holiday) visa which allows an applicant, who is outside Australia at the time of grant, 12 months from the date of grant to travel to and enter Australia.

Schedule 11 – Amendments of Immigration (Education) Regulations 1992 – Fees and charges

Item [1] – Paragraph 4(1)(a)

This item amends paragraph 4(1)(a) of the Immigration (Education) Regulations to provide for the annual adjustment of the prescribed fee for a formal English course provided in accordance with section 4 of the Immigration (Education) Act. The fee is increased from $335 to $400. This adjustment results in an increase to the charge of approximately 20 per cent. The increase does not cause the applicable fee limit set out in subsections 4A(3A) and (3B) of the Immigration (Education) Act to be exceeded.

Item [2] – Paragraph 4(1)(b)

This item amends paragraph 4(1)(b) of the Immigration (Education) Regulations to provide for the annual adjustment of the prescribed fee for an English course that is not a formal English course provided in accordance with section 4 of the Immigration (Education) Act. The fee is increased from $75 to $90. This adjustment results in an increase to the charge of 20 per cent. The increase does not cause the applicable fee limit set out in subsections 4A(3A) and (3B) of the Immigration (Education) Act to be exceeded.

All increases are rounded to a multiple of $5.00 according to the following methodology:

· in any other case, where the charge calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

Schedule 12 – Amendment of Australian Citizenship Regulations 2007 – Fees and charges

Item [1] – Amendments

This item amends subregulation 13(5) of the Citizenship Regulations to increase the refund that a person may receive in the circumstances prescribed in paragraphs 13(5)(a) – (d), which relate to an applicant not sitting a citizenship test and consequently not being eligible for citizenship by conferral. The refund is increased from $120 to $130.

This item also increases certain fees in Schedule 3 to the Citizenship Regulations by 10 per cent. A table of those amendments is set out below.

Description	Item number of Schedule 3 to the Australian Citizenship Regulations 2007	Omit	Insert
Applications made at the same time under section 16 of the Citizenship Act by 2 or more siblings	1	$110	$120
	1	$85	$95
An application under section 16 of the Citizenship Act, other than an application mentioned in item 1	2	$110	$120
Applications made at the same time under section 19C of the Citizenship Act by 2 or more siblings	3	$110	$120
	3	$85	$95
An application under section 19C of the Citizenship Act, other than an application mentioned in item 3	4	$110	$120
Certain applications under section 21 of the Citizenship Act	14A	$240	$260
Certain applications under section 21 of the Citizenship Act	15	$120	$130
Certain applications under section 21 of the Citizenship Act	15B	$120	$130
Certain applications under section 21 of the Citizenship Act	15D	$120	$130
An application under section 29 of the Citizenship Act, other than an application mentioned in item 16	17	$65	$70
An application under section 33 of the Citizenship Act	18	$260	$285
An application under section 37 of the Citizenship Act, other than an application mentioned in item 19	20	$55	$60

All increases, except the increase in relation to item 14A of Schedule 3, are rounded to a multiple of $5.00 according to the following methodology:

· if the amount of the fee calculated under this formula is not a multiple of $5.00, and if the amount exceeds the nearest lower multiple of $5.00 by $2.50 or more, the amount is rounded up to the nearest $5.00;

· in any other case, where the fee calculated under the formula is not a multiple of $5.00, the amount is rounded down to the nearest lower multiple of $5.00.

The fee in item 14A of Schedule 3 is rounded in accordance with a different methodology. That fee is rounded to a multiple of $5.00 which, when divided in half, results in an amount that is itself a multiple of $5.00. This is because half of that fee may be refunded in circumstances provided for in subregulation 13(5) of the Citizenship Regulations, which relate to an applicant not sitting a citizenship test and consequently not being eligible for citizenship by conferral. Rounding the fee in item 14A of Schedule 3 in this manner ensures that both the fee and the refund are multiples of $5.00.

Schedule 13 – Amendments of Australian Citizenship Regulations 2007 – Fees and charges

Items [1] and [2] – Subregulations 12A (2) and (3)

These items omit “places and currency instrument” and insert “places and currencies instrument”, in subregulations 12A(2) and (3) of the Citizenship Regulations.

The purpose of this amendment is to make a minor technical correction to the reference to the “places and currencies” instrument in subregulations 12A(2) and (3) to ensure those references are correct and incorporate the definition set out in subregulation 12A(7).

Item [3] – Subregulation 12A (7), definition of conversion instrument

This item substitutes the definition of “conversion instrument” currently in subregulation 12A(7) of the Citizenship Regulations with “conversion instrument means the instrument titled Payment of Visa Application Charges and Fees in Foreign Currencies, (IMMI 09/038) that commenced on 1 July 2009”.

The definition of “conversion instrument” is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign currency specified in the conversion instrument.

The definition of “conversion instrument” is being amended to incorporate by reference, a new instrument titled “Payment of Visa Application Charges and Fees in Foreign Currencies, (IMMI 09/038)” which is proposed to be made under subregulation 5.36(1A) of the Migration Regulations and commence on 1 July 2009. This instrument sets out visa application charge and fee amounts in foreign currencies which correspond to amounts payable in Australian dollars. If the amount of the application fee is mentioned in the conversion instrument, then payment can be made in the corresponding amount in the foreign currency.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under regulation 5.36 of the Migration Regulations as in force from time to time. Rather, the new instrument will be incorporated by reference at the time of commencement of the Regulations.

Instruments made under the Migration Regulations are incorporated in the Citizenship Regulations because the Citizenship Act does not currently permit the Minister to make instruments under the Citizenship Regulations.

Item [4] – Subregulation 12A (7), definition of places and currencies instrument

This item substitutes the definition of “places and currencies instrument” currently in the Citizenship Regulations with “places and currencies instrument means the instrument titled Places and Currencies for Paying of Fees, (IMMI 09/039) that commenced on 1 July 2009”.

This definition of “places and currencies instrument” is relevant to provisions in the Citizenship Regulations which allow a person who makes an application under the Citizenship Act to pay the prescribed fee in a foreign country and a foreign currency specified in the places and currencies instrument.

The definition of “places and currencies instrument” is being amended to incorporate by reference a new instrument titled “Places and Currencies for Paying of Fees, (IMMI 09/039)” which is proposed to be made under subregulation 5.36(1) of the Migration Regulations and commence on 1 July 2009. The instrument sets out the places and currencies for paying fees.

Due to the operation of section 14 of the Legislative Instruments Act 2003, it is not possible to incorporate by reference the instrument made under regulation 5.36 of the Migration Regulations as in force from time to time. Rather, those instruments will be incorporated by reference at time of commencement of the Regulations.

Commonwealth Numbered Regulations - Explanatory Statements

Select Legislative Instrument 2009 No. 116