Migration (1993) Regulations (Amendment) (Cth)

Statutory Rules 1993

No. 235 1

__________________

Migration (1993) Regulations 2(Amendment)

I, The ADMINISTRATOR of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 2 September 1993.

 P. BENNETT

 Administrator

By His Excellency’s Command,

NICK BOLKUS

Minister for Immigration and Ethnic Affairs

____________

1.   Commencement

1.1   Regulations 5 and 7 commence on 13 September 1993.

1.2   Regulation 8 commences on 1 October 1993.

[NOTE:

 The remainder of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

2.   Amendment

2.1   The Migration (1993) Regulations are amended as set out in these Regulations.

3. Regulation 2.10 (Prescribed change in circumstances (paragraphs 36 (1) (a) and 37 (2) (a)

of Act))

3.1   Add at the end:

• “(n)

  the person satisfies the criteria for the grant of a Class 774 ((designated persons (spouse) (temporary) entry permit).”.

4.   Schedule 1 (Classification of visas and entry permits)

4.1   After item 2801, insert:

“2801a 774 (Designated persons (spouse) (temporary)) [Entry permit only] —”.

5.   Schedule 2, Chapter 1.1 (Migrant visas and entry permits)

5.1   Subclause 127.131 (1) (definition of “fiscal year”):

Omit “principal business”, substitute “main business” (wherever occurring).

5.2   Clause 127.131:

Add at the end:

“(3)

For the purposes of this Part, and subject to subclause (4), a business is a main business in relation to an applicant if:

• (a)

  the applicant maintains or maintained direct and continuous involvement in management of that business from day to day and in making decisions that affect the overall direction and performance of that business; and

• (b)

  the value of the applicant’s interest, or the total value of the interests of the applicant and the applicant’s spouse, in the business is or was at least 10% of the total value of the business.

“(4)

If an applicant owns or has owned an interest in more than one business that would be, except for this subclause, a main business in relation to the applicant, the applicant is to nominate no more than 2 of those businesses as main businesses in relation to the applicant.”.

5.3   Clause 127.321:

Omit the clause, substitute:

“127.321 The applicant is, or has been in any 2 fiscal years in the 4 fiscal years immediately preceding the making of the application, the owner of an interest in one or more businesses.”.

5.4   Subclause 127.322 (2):

Omit the subclause, substitute:

“(2)

In any 2 fiscal years in the 4 fiscal years immediately preceding the making of the application, the net assets of:

• (a)

  the applicant; or

• (b)

  the applicant and his or her spouse together;

in a business or businesses were not less than the equivalent of aud 300,000 in each of those years.”.

5.5   Clause 127.323:

Omit the clause, substitute:

“127.323 In any 3 fiscal years in the 4 fiscal years immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses, maintained direct and continuous involvement in management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.”.

5.6   Clause 127.324:

Omit the clause.

5.7   Clause 129.131 (1) (definition of “fiscal year”):

Omit “principal business”, substitute “main business” (wherever occurring).

5.8   Clause 129.131:

Add at the end:

“(3)

For the purposes of this Part, and subject to subclause (4), a business is a main business in relation to an applicant if:

• (a)

  the applicant maintains or maintained direct and continuous involvement in management of that business from day to day and in making decisions that affect the overall direction and performance of that business; and

• (b)

  the value of the applicant’s interest, or the total value of the interests of the applicant and the applicant’s spouse, in the business is or was at least 10% of the total value of the business.

“(4)

If an applicant owns, or has owned, an interest in more than one business that would be, except for this subclause, a main business in relation to the applicant, the applicant is to nominate no more than 2 of those businesses as main businesses in relation to the applicant.”.

5.9   Clause 129.321:

Omit the clause, substitute:

“129.321 The applicant is, or has been in any 2 fiscal years in the 4 fiscal years immediately preceding the making of the application, the owner of an interest in one or more businesses.”.

5.10   Subclause 129.322 (2):

Omit “3 fiscal years”, substitute “2 fiscal years”.

5.11   Clause 129.323:

Omit the clause, substitute:

“129.323 In any 3 fiscal years in the 4 fiscal years immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses, maintained direct and continuous involvement in management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.”.

5.12   Clause 129.324:

Omit the clause.

6.   Schedule 2, Chapter 2.8 (Miscellaneous visas and entry permits)

6.1   Insert after Part 773:

“PART 774—CLASS 774 (DESIGNATED PERSONS (SPOUSE) (TEMPORARY)) ENTRY PERMIT

774.1INTRODUCTION

774.11Group: 2.8 (miscellaneous).

774.12Purpose of grant: To authorise a temporary stay in Australia by certain people who are in custody under section 54l of the Act.

[NOTE: In relation to Class 774 entry permits, all applicants are primary persons.]

774.13Interpretation

774.131 In this Part:

‘marital relationship’ does not include a de facto relationship.

774.2-4 [No visa of this class]

774.5DESIGNATED PERSONS (SPOUSE) (TEMPORARY) ENTRY PERMITÑPRELIMINARY

774.51When and where may application and grant be made?

774.511 A Class 774 entry permit may be applied for and granted only:

• (a)

  after entry; and

• (b)

  while the applicant is in custody under section 54l of the Act.

774.52Period of validity (entry permit)

774.521 A Class 774 entry permit has effect, subject to the Act and these Regulations, for 28 days.

[774.6Designated persons (spouse) (temporary) entry permit not granted before entry]

774.7DESIGNATED PERSONS (SPOUSE) (TEMPORARY)ENTRY PERMIT (AFTER ENTRY)

[NOTE: The purpose of the grant of a Class 774 entry permit after entry is to authorise a period of stay in Australia for certain persons who are in custody under section 54l of the Act.]

774.71Application (entry permitÑafter entry)

774.711 Subject to subclause (2), the application must be made in accordance with approved form 819.

(2)

An application by a person who is applying as the dependant child of another applicant for a Class 774 entry permit may be combined with, and lodged at the same time as, the application by that other applicant.

[NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.28 (Act, subsection 34 (1)).]

774.72Criteria to be satisfied at time of application (entry permitÑafter entry)

774.721 (1) The applicant satisfies the requirements of subclause (2) or (3).

(2)

An applicant satisfies the requirements of this subclause if the applicant is:

• (a)

  a designated person within the meaning of section 54k of the Act; and

• (b)

  in custody under section 54l of the Act; and

• (c)

  married to an Australian citizen or an Australian permanent resident and the marriage is a valid marriage for the purposes of section 12 of the Act; and

• (d)

  nominated for the grant of the entry permit by that Australian citizen or Australian permanent resident.

(3)

An applicant satisfies the requirements of this subclause if the applicant is:

• (a)

  a dependant child of a person who satisfies the requirements of subclause (2); and

• (b)

  nominated for the grant of the entry permit by the Australian citizen or Australian permanent resident to whom that person is married.

774.73Criteria to be satisfied at time of decision (entry permitÑafter entry)

774.731 In the case of an applicant referred to in subclause 774.721 (2), the Minister is satisfied that the marital relationship between the applicant and the Australian citizen or Australian permanent resident to whom the applicant is married is both genuine and continuing.

774.732 In the case of an applicant referred to in subclause 774.721 (3):

• (a)

  the person on whom the applicant is dependent has been granted a Class 774 entry permit; and

• (b)

  the Minister is satisfied that the grant of the entry permit to the applicant would not prejudice the rights and interests of any person who has, or may reasonably be expected to have, custody or guardianship of, or access to, the applicant.

774.733 The applicant satisfies public interest criteria 4001 to 4003 and 4007 to 4009.

774.734 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

774.735 The Minister is satisfied that the grant of the entry permit would not prejudice the rights of any person who has custody or guardianship of, or access to, a dependent child of the applicant.

774.74Conditions (entry permitÑafter entry)

774.741 Mandatory conditions: 9203.

774.742 Discretionary conditions: Nil.

774.8FEES: Nil.”.

7.   Schedule 8 (Business skills points test—attributes and points)

7.1   Part 1, Division 1:

Omit the Division, substitute:

Division 1ÑApplicantÕs main business or main businesses (Classes 127 and 129 visas)
8101	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 5,000,000; and	75
(b) the applicant’s main business, or at least one of the applicant’s main businesses, had its major activity in a designated industry sector
8102	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 3,000,000; and	70
(b) the applicant’s main business, or at least one of the applicant’s main businesses, had its major activity in a designated industry sector
8103	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 1,500,000; and	65
(b) the applicant’s main business, or at least one of the applicant’s main businesses, had its major activity in a designated industry sector
8104	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 750,000; and	60
(b) the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees; and
(c) the applicant’s main business, or at least one of the applicant’s main businesses, had its major activity in a designated industry sector
8105	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 5,000,000; and	60
(b) the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees
8106	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a)the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 500,000; and	55
(b)the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees; and (c) the applicant’s main business, or at least one of the applicant’s main businesses, had its major activity in a designated industry sector
8107	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 3,000,000; and	55
(b) the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees
8108	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 1,500,000; and	50
(b) employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees
8109	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 750,000; and	40
(b) the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees
8110	In each of any 2 of the 3 fiscal years immediately preceding the making of the application: (a) the applicant’s main business, or the applicant’s main businesses together, had an annual turnover of not less than the equivalent of AUD 500,000; and (b) the applicant’s main business, or the applicant’s main businesses together, employed not fewer than: (i) in the case of an applicant for a Class 127 visa or entry permit—5 full-time employees; and (ii) in the case of an applicant for a Class 129 visa or entry permit—3 full-time employees	35

7.2   Part 1, Division 2:

Omit the heading, substitute:

“Division 2—Business employing the applicant (Classes 128 and 130 visas)”.

7.3   Item 8202 (column 3):

Omit “20”, substitute “25”.

7.4   Item 8203 (column 3):

Omit “15”, substitute “20”.

8.   Schedule 10 (Amounts of fees in certain currencies)

8.1   Omit the Schedule, substitute:

“SCHEDULE 10 Regulation 7.25

AMOUNTS OF FEES IN CERTAIN CURRENCIES

PART 1—CANADA, FRANCE, GERMANY, HONG KONG, AND JAPAN

Australia	Canada	France	Germany	Hong Kong	Japan
Dollar	Dollar	Franc	Deutschmark	Dollar	Yen
1,900	1,700	7,730	2,265	10,400	140,000
1,750	1,565	7,120	2,085	9,500	129,000
1,600	1,432	6,510	1,910	8,700	118,000
1,450	1,298	5,900	1,730	7,900	107,000
1,300	1,164	5,290	1,550	7,100	96,000
1,000	894	4,070	1,195	5,500	74,000
780	698	3,180	930	4,300	57,000
390	350	1,590	465	2,200	29,000
385	344	1,570	460	2,100	29,000
370	332	1,510	445	2,100	28,000
360	322	1,470	430	2,000	27,000
300	268	1,220	360	1,700	23,000
240	215	980	290	1,400	18,000
230	206	940	275	1,300	17,000
200	180	820	240	1,100	15,000
190	170	780	230	1,100	14,000
175	158	720	210	1,000	13,000
155	140	630	185	900	12,000
145	130	590	175	800	11,000
130	116	530	155	800	10,000
105	94	430	125	600	8,000
100	90	410	120	600	8,000
60	54	250	75	400	5,000
50	45	210	60	300	4,000
30	28	130	40	200	3,000
20	18	90	25	200	2,000
10	10	40	15	100	1,000
5	5	20	10	100	1,000

SCHEDULE 10—continued

PART 2—MALAYSIA, THE NETHERLANDS, THE PHILIPPINES AND SINGAPORE

Australia	Malaysia	Netherlands	Philippines	Singapore
Dollar	Ringgit	Guilder	Peso	Dollar
1,900	3,405	2,545	32,925	2,138
1,750	3,136	2,345	30,325	1,969
1,600	2,867	2,145	27,725	1,800
1,450	2,598	1,940	25,130	1,631
1,300	2,330	1,740	22,530	1,463
1,000	1,792	1,340	17,330	1,125
780	1,398	1,045	13,520	878
390	699	525	6,760	439
385	690	515	6,675	433
370	663	495	6,415	416
360	645	485	6,240	405
300	538	405	5,200	338
240	430	325	4,160	270
230	412	310	3,985	259
200	358	270	3,470	225
190	340	254	3,292	214
175	314	235	3,035	197
155	278	210	2,690	174
145	260	195	2,515	163
130	233	175	2,255	146
105	188	145	1,820	118
100	179	135	1,735	113
60	108	80	1,040	68
50	90	70	870	56
30	54	40	520	34
20	36	30	350	23
10	18	15	175	11
5	9	10	90	6

SCHEDULE 10—continued

PART 3—SWEDEN, SWITZERLAND, THE UNITED KINGDOM AND THE UNITED STATES OF AMERICA

Australia	Sweden	Switzerland	United Kingdom	United States of America
Dollar	Krona	Franc	Pound	Dollar
1,900	10,700	2,000	884	1,337
1,750	9,850	1,840	814	1,231
1,600	9,000	1,690	744	1,126
1,450	8,200	1,530	674	1,020
1,300	7,350	1,370	605	915
1,000	5,650	1,060	465	704
780	4,400	820	363	549
390	2,200	410	181	274
385	2,200	410	179	271
370	2,100	390	172	260
360	2,050	380	167	253
300	1,700	320	140	211
240	1,350	260	112	169
230	1,300	250	107	162
200	1,150	210	93	141
190	1,100	200	88	134
175	1,000	190	81	123
155	900	170	72	109
145	850	160	67	102
130	750	140	60	91
105	600	110	49	74
100	600	110	47	70
60	350	70	28	42
50	300	60	23	35
30	200	40	14	21
20	150	30	9	14
10	100	10	5	7
5	50	10	2	4

NOTES

1. Notified in the Commonwealth of Australia Gazette on 9 September 1993.

2. Statutory Rules 1992 No. 367 as amended by 1993 Nos. 19, 29, 88, 169, 175 and 218.