Migration Amendment Regulations 1998 (No. 11) (Cth)

Migration Amendment Regulations 1998 (No. 11)

Statutory Rules 1998No. 306

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations under theMigration Act 1958.

Dated 27 October 1998.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

Migration Amendment Regulations 1998 (No. 11)1

Statutory Rules 1998No. 3062

made under the

Migration Act 1958

   

Contents

Page

• •
• •

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1Name of regulations

 These regulations are the Migration Amendment Regulations 1998 (No. 11).

2Commencement

 These regulations commence on 1 December 1998.

3Amendment of Migration Regulations

 Schedule 1 amends the Migration Regulations.

Schedule 1Amendments of Migration Regulations

Do not delete: Schedule Part placeholder

[1]Regulation 1.03, definition of special need relative

omit

[2]Regulation 1.03

insert

carer has the meaning given by regulation 1.15AA.

[3]After regulation 1.15

insert

1.15AA Carer

• (1)

  An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

  • (a)

    the applicant is a relative of the resident; and

  • (b)

    according to a certificate that meets the requirements of subregulation (2):

    • (i)

      a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    • (ii)

      the medical condition is causing physical impairment of the ability of that person to attend to the practical aspects of daily life; and

    • (iii)

      the physical impairment has, under the Impairment Tables, the rating that is specified in the certificate; and

    • (iv)

      because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

  • (c)

    the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and

  • (d)

    if the person to whom the certificate relates is not the resident, the resident has a permanent or long‑term need for assistance in providing the direct assistance mentioned in subparagraph (b) (iv); and 

  • (e)

    the assistance cannot reasonably be obtained:

    • (i)

      from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    • (ii)

      from welfare, hospital, nursing or community services in Australia; and

  • (f)

    the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b) (iv) or paragraph (d), as the case requires.

• (2)

  A certificate meets the requirements of this subregulation if:

  • (a)

    it is a certificate in relation to a medical assessment carried out on behalf of Health Services Australia that is signed by the medical adviser who carried it out; or

  • (b)

    it is a certificate issued by Health Services Australia in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by Health Services Australia in accordance with its procedures.

• (3)

  The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1) (b) to be correct for the purposes of deciding whether an applicantsatisfies a criterion that the applicant is a carer.

• (4)

  In this regulation:

Health Services Australia means the government business enterprise Health Services Australia Ltd. 

Impairment Tables means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.

[4]Schedule 1, subparagraph 1107 (2) (b) (i)

omit

 In the

insert

 Subject to subparagraph (ii), in the

[5]Schedule 1, subparagraph 1107 (2) (b) (ii)

substitute

• (ii)

  In the case of an applicant:

  • (A)

    who is a carer; and

  • (B)

    in relation to whom the Minister has determined that the second instalment of the visa application charge should not be paid because the Minister is satisfied that payment of the instalment has caused, or is likely to cause, severe financial hardship to the applicant or to the person of whom the applicant is a carer:  Nil

• (iii)

  In any other case:  Nil

[6]Schedule 1, after paragraph 1107 (3) (c)

insert

• (d)

  Application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought.

[7]Schedule 1, subparagraph 1115 (2) (b) (i)

omit

 In the

insert

 Subject to subparagraph (ii), in the

[8]Schedule 1, subparagraph 1115 (2) (b) (ii)

substitute

• (ii)

  In the case of an applicant:

  • (A)

    who is a carer; and

  • (B)

    in relation to whom the Minister has determined that the second instalment of the visa application charge should not be paid because the Minister is satisfied that payment of the instalment has caused, or is likely to cause, severe financial hardship to the applicant or to the person of whom the applicant is a carer:  Nil

• (iii)

  In any other case:  Nil

[9]Schedule 1, after paragraph 1115 (3) (d)

insert

• (e)

  Application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought. 

[10]Schedule 1, subparagraph 1119 (2) (b) (i)

omit

 In the

insert

 Subject to subparagraph (ii), in the

[11]Schedule 1, subparagraph 1119 (2) (b) (ii)

substitute

• (ii)

  In the case of an applicant:

  • (A)

    who is a carer; and

  • (B)

    in relation to whom the Minister has determined that the second instalment of the visa application charge should not be paid because the Minister is satisfied that payment of the instalment has caused, or is likely to cause, severe financial hardship to the applicant or to the person of whom the applicant is a carer:  Nil

• (iii)

  In any other case:  Nil

[12]Schedule 1, after paragraph 1119 (3) (c)

insert

• (d)

  Application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought. 

[13]Schedule 1, paragraph 1125 (2) (b)

substitute

• (b)

  Second instalment (payable before grant of visa):

  • (i)

    In the case of an applicant:

    • (A)

      who is a carer; and

    • (B)

      in relation to whom the Minister has determined that the second instalment of the visa application charge should not be paid because the Minister is satisfied that payment of the instalment has caused, or is likely to cause, severe financial hardship to the applicant or to the person of whom the applicant is a carer:  Nil

  • (ii)

    In any other case:  $945

[14]Schedule 1, after paragraph 1125 (3) (b)

insert

• (c)

  Application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought.

[15]

Note Omitspecial need relative from the note after Division 104.1, and insert carer. 

[16]Schedule 2, paragraph 104.211 (3) (a)

omit

 or a special need relative,

insert

 or claims to be a carer,

[17]Schedule 2, clause 104.221

substitute

• 104.221

  (1)   Subject to subclause (2), the applicant:

  • (a)

    continues to satisfy the criterion in clause 104.211; or

  • (b)

    does not continue to satisfy that criterion only because the applicant has turned 18. 

• (2)

  If the satisfaction by the applicant of clause 104.211 was on the basis that the applicant claimed to be a carer, the applicant is a carer. 

[18]

Note Omitspecial need relative from the note after Division 806.1, and insert carer. 

[19]Schedule 2, paragraph 806.211 (d)

omit

 an orphan relative, a remaining relative or a special need relative of

insert

 an orphan relative or a remaining relative of, or claims to have become a carer of,

[20]Schedule 2, clause 806.213

omit

 an orphan relative, a remaining relative or a special need relative of

insert

 an orphan relative or a remaining relative of, or claims to be a carer of,

[21]Schedule 2, clause 806.221

substitute

806.221 (1)   Subject to subclause (2), the applicant:

• (a)

  continues to satisfy the criterion in clause 806.213; or

• (b)

  does not continue to satisfy that criterion only because the applicant has turned 18. 

• (2)

  If the satisfaction by the applicant of clause 806.213 was on the basis that the applicant claimed to be a carer, the applicant is a carer.

[22]Additional amendments

 The following provisions are amended by omitting ‘special need relative’ and inserting ‘carer’:

• •

  subparagraph 1107 (2) (a) (iv)

• •

  subparagraph 1115 (2) (a) (v)

• •

  subparagraph 1125 (2) (a) (ii)

• •

  paragraph 104.224A (b)

• •

  paragraph 104.226 (1) (c)

• •

  paragraph 104.324A (b).

Notes

1. These regulations amend Statutory Rules 1994 No. 268 as amended by 1994 Nos. 280, 322, 376 and 452; 1995 Nos. 3, 38, 117, 134, 268, 302 and 411; 1996 Nos. 12, 75 (regulations 7 and 8 were disallowed by the Senate on 11 September 1996), 76, 108, 121, 135, 198, 211 (regulations 4, 10, 11, 13.3, 14-37, 47-49, 51, 53-55, 74, 77.16, 77.19, 78, 85, 119 and 114 were disallowed by the Senate on 7 November 1996) and 276; 1997 Nos. 17, 64, 91, 92, 109, 137, 184, 185, 216, 263, 279, 288, 301 and 354; 1998 Nos. 36, 37, 104 (regulation 15 was disallowed by the Senate on 2 July 1998), 139, 210, 214, 284, 285, 304 and 305.

2. Made by the Governor-General on 27 October 1998, and notified in the Commonwealth of Australia Gazette