Migration Amendment Regulations 1998 (No. 9) (Cth)
Migration Amendment Regulations 1998 (No. 9)
Statutory Rules 1998 No. 304
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 the
Migration Act 1958 . Dated 27 October 1998.
WILLIAM DEANE
Governor-General
By His Excellency’s Command,
philip ruddock
Minister for Immigration and Multicultural Affairs
made under the
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These regulations are the
Migration Amendment Regulations 1998 (No. 9) .
These regulations commence on 1 December 1998.
Schedule 1 amends the Migration Regulations.
[1101] Regulation 1.03, definition of SOFA forces civilian component member , paragraph (a)
after Malaysia,
insert New Zealand,
[1102] Regulation 1.03, definition of SOFA forces member , paragraph (a)
after Malaysia,
insert New Zealand,
insert
religious institution means a religious institution (within the meaning of paragraph 23 (e) of theIncome Tax Assessment Act 1936 ), the income of which is exempt from income tax under that paragraph.
omit that visa
insert that relevant permission
substitute
(e) if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission.
omit Despite
insert
(1) Despite
insert
(2) Despite anything in regulation 2.07, for sections 45 and 46 of the Act, an application for a Temporary Business Entry (Class UC) visa is taken to have been validly made if:
(a) the applicant is:
(i) the holder of a valid passport issued by a designated APEC economy; or
(ii) in the case of an applicant who is a permanent resident of Hong Kong — the holder of any valid passport; and
(b) the applicant:
(i) has applied to the Government of the designated APEC economy for an APEC Business Travel Card under arrangements in force between Australia and designated APEC economies; or
(ii) in the case of an applicant who is a permanent resident of Hong Kong — has applied to the Government of Hong Kong for an APEC Business Travel Card under arrangements in force between Australia and designated APEC economies; and
(c) that Government has sent to an office mentioned in subparagraph 2.10 (1) (b) (iii):
(i) that application, or a copy of that application, by written communication (including facsimile message); or
(ii) the information contained in that application by electronic transmission using a computer; or
(iii) that application, or a copy of that application, in any other manner approved in writing by the Minister.
omit clearance.
insert clearance; or
insert
(iii) if the application is for a Temporary Business Entry (Class UC) visa made in accordance with subregulation 2.07AA (2) — at an office of Immigration that is approved in writing by the Minister for the purpose of receiving applications of that kind.
insert
(2A) For subparagraph (1) (b) (iii), an application is taken to have been made at an office of Immigration if the related application for an APEC Business Travel Card, a copy of that application, or the information contained in that application, is sent to the office in accordance with paragraph 2.07AA (2) (c).
insert
2.12J Refund of first and second instalments of visa application charge for Resolution of Status (Temporary) (Class UH) visas
(1) The Minister must, at the request of the applicant (or the applicant’s legal representative), refund the amount paid by way of the first and second instalments of a visa application charge for a Resolution of Status (Temporary) (Class UH) visa if:
(a) the applicant is the holder of a permanent visa other than a Resolution of Status (Residence) (Class BL) visa; and
(b) at the time of the grant of the permanent visa, the person was the holder of a Subclass 450 (Resolution of Status — Family Member (Temporary)) visa or a Subclass 850 (Resolution of Status (Temporary)) visa that was granted on the basis of an application made after the application for that permanent visa.
(2) A refund under this regulation must be paid to the applicant or, if the applicant has died, to the applicant’s legal personal representative.
(3) The receipt given by a person who purports to be a legal personal representative of a deceased applicant is, for all purposes, a valid discharge of any liability of the Commonwealth under this regulation.
(4) A refund under this regulation of the amount of the second instalment of the visa application charge may be paid in a currency other than Australian currency, if the second instalment was paid in that other currency.
Note After regulation 2.42, insert the following note:
Note As to the manner of service, and time of receipt, of a notification under subregulation (1), see regulations 5.02, 5.02A and 5.03.
Note After regulation 2.44, insert the following note:
Note As to the manner of service, and time of receipt, of a notification or an invitation mentioned in subregulation 2.44 (2), or a notice of extension of time mentioned in subregulation 2.44 (3), see regulations 5.02, 5.02A and 5.03.
Note After regulation 2.45, insert the following note:
Note As to the manner of service, and time of receipt, of a notification mentioned in regulation 2.45, see regulations 5.02, 5.02A and 5.03.
Note After regulation 2.47, insert the following note:
Note As to the manner of service, and time of receipt, of a notice mentioned in regulation 2.47, see regulations 5.02, 5.02A and 5.03.
omit subsection
insert section
Note After regulation 2.49, insert the following note:
Note As to the manner of service, and time of receipt, of a notice mentioned in regulation 2.49, see regulations 5.02, 5.02A and 5.03.
insert
5.02A Service of documents — cancellation, or proposed cancellation, of visa
(1) This regulation applies to a document relating to:
(a) the proposed cancellation of a visa under the Act that is to be given to the holder of the visa; or
(b) the cancellation of a visa under the Act that is to be given to the former holder of the visa.
(2) For the Act and these regulations, a document must be given to the person who is the holder, or former holder, of the visa:
(a) by giving it to the person personally; or
(b) by sending it to the person’s residential or business address last known to the Minister; or
(c) if the person is in immigration detention — in the manner mentioned in regulation 5.02.
substitute
(1A) This regulation applies to a document sent by the Minister, a Tribunal or review officer to a person in that person’s capacity as:
(a) an applicant, of any kind, under the Act or these regulations; or
(b) the holder, or the former holder, of a visa.
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insert Subject to subparagraph (iii), in
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insert Subject to subparagraph (iii), in
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(iii) In the case of:
(A) an applicant who is a person (
a religious worker ):
(I) who seeks to enter Australia to work in accordance with a labour agreement entered into by a religious institution; and
(II) who satisfies the primary criteria for the grant of a visa of a subclass included in Labour Agreement (Migrant) (Class AU); or
(B) an applicant who:
(I) is a member of the family unit of a religious worker; and
(II) satisfies the secondary criteria for the grant of a visa of a subclass included in Labour Agreement (Migrant) (Class AU): Nil
(iv) In any other case: Nil.
substitute
(c) If:
(i) a person has made an application to a Government in accordance with subparagraph 2.07AA (2) (b) (i) or (ii); and
(ii) that application, a copy of that application, or the information contained in that application, has been sent by the Government in accordance with paragraph 2.07AA (2) (c) to an office of Immigration that is approved in writing by the Minister for the purpose of receiving applications of that kind: Nil.
substitute
(6) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and
(ii) is being assessed by an officer against the Minister’s guidelines for the identification of decisions in relation to which the Minister may think that it is in the public interest to substitute more favourable decisions; and
(iii) has not previously sought, or been the subject of a request by another person for, the exercise of the Minister’s power under that section to substitute a more favourable decision for the decision; or
(b) the Minister is personally considering whether to exercise, or to consider the exercise of, the Minister’s powers to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act in relation to the applicant; or
(c) the Minister has decided, under section 345, 351, 391, 417 or 454 of the Act, to substitute a more favourable decision for the decision of a review authority but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act.
[1302] Clause 102.111, definition of child for adoption
omit clause 102.211 (3);
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Subclass 105 Skilled — Australian - linked
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Subclass 106 Regional - linked
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(aa) the application is made within 5 years of the grant of that visa; and
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(aa) the application is made within 5 years of the grant of that visa; and
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insert citizen or an Australian permanent resident
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(ba) the application is made within 5 years of the grant of that visa; and
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insert citizen or an Australian permanent resident
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(aa) the application is made within 5 years of the grant of that visa; and
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insert citizen or an Australian permanent resident
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(aa) the application is made within 5 years of the grant of that visa; and
substitute 204.222 If the applicant meets the requirements of paragraph 204.211 (1) (a), the Minister is satisfied that the applicant does not have the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex.
204.222A The Minister is satisfied that permanent settlement in Australia:
(a) is the appropriate course for the applicant; and
(b) would not be contrary to the interests of Australia.
omit permanent resident
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(aa) the application is made within 5 years of the grant of that visa; and
omit The Minister
insert Unless the applicant has met the requirements of subclause 209.211 (3), the Minister
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(aa) the application is made within 5 years of the grant of that visa; and
omit The Federation
insert Unless the applicant meets the requirements of subclause 210.211 (3), the Federation
substitute 210.224 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010.
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(aa) the application is made within 5 years of the grant of that visa; and
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insert Unless the applicant has met the requirements of subclause 211.211 (3), the applicant has
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211.32 Criteria to be satisfied at the time of decision 211.321 The applicant:
(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of subclause 211.211 (2)), is the holder of a Subclass 211 visa; or
(b) continues to be a member of the immediate family of a person who, having satisfied the primary criteria (and, in particular, having met the requirements of subclause 211.211 (3)), is the holder of a Subclass 211 visa.
211.322 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and
(b) if he or she has previously been in Australia, satisfies special return criteria 5001 and 5002.
211.323 If the applicant is the dependent child of a person who is the holder of a Subclass 211 visa, the Minister is satisfied that the grant of the visa to the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the applicant.
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(aa) the application is made within 5 years of the grant of that visa; and
substitute 212.225 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
omit The Minister
insert Unless the applicant has met the requirements of subclause 212.211 (3), the Minister
omit permanent resident
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insert
(aa) the application is made within 5 years of the grant of that visa; and
omit The applicant has
insert Unless the applicant meets the requirements of subclause 213.211 (3), the applicant has
omit The Minister
insert Unless the applicant has met the requirements of subclause 213.211 (3), the Minister
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(aa) the application is made within 5 years of the grant of that visa; and
omit The Minister
insert Unless the applicant has met the requirements of subclause 215.211 (3), the Minister
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(aa) the application is made within 5 years of the grant of that visa; and
omit The Ahmadiyya
insert Unless the applicant meets the requirements of subclause 216.211 (3), the Ahmadiyya
omit The Minister
insert Unless the applicant has met the requirements of subclause 216.211 (3), the Minister
omit permanent resident
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(aa) the application is made within 5 years of the grant of that visa; and
omit The Minister
insert Unless the applicant has met the requirements of subclause 217.211 (5), the Minister
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410.111 (1) In this Part:
equivalent visa means:
(a) a Class 410 (retirement) visa or entry permit under the Migration (1993) Regulations; or
(b) a retirement (code number 410) visa or entry permit under the Migration (1989) Regulations; or
(c) a Transitional (Temporary) (Class UA) visa that:
(i) was granted on the basis of an application for a visa or entry permit of a kind mentioned in paragraph (a) or (b); or
(ii) is, or was, taken to be held by a person on the basis of having held a visa or entry permit of a kind mentioned in paragraph (a) or (b).
established applicant means an applicant who:
(a) either:
(i) holds a Subclass 410 visa or an equivalent visa; or
(ii) meets the requirements of subclause (2); and
(b) either:
(i) held a Subclass 410 visa, or an equivalent visa, on 30 November 1998; or
(ii) was granted a Subclass 410 visa on or after 1 December 1998 on the basis of an application made before 1 December 1998; and
(c) has not held another substantive visa (other than a Subclass 410 visa) since becoming the holder of the visa mentioned in paragraph (b).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is in Australia; and
(ii) is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was a Subclass 410 visa or an equivalent visa.
insert
(iii) a Transitional (Temporary) (Class UA) visa that:
(A) was granted on the basis of an application for a Class 410 (retirement) visa or entry permit under the Migration (1993) Regulations or a retirement (code number 410) visa or entry permit under the Migration (1989) Regulations; or
(B) is, or was, taken to be held by a person on the basis of having held a visa or entry permit mentioned in sub-subparagraph (A); or
omit a rollover
insert an established
substitute 410.227 If the applicant is not an established applicant:
(a) either:
(i) the resources of the applicant, or (if the applicant has a spouse) the combined resources of the applicant and the applicant’s spouse (if any), available for transfer to Australia, are not less than:
(A) $650,000; or
(B) if the applicant is the parent of an Australian citizen who is usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen — $600,000; or
(ii) the resources of the applicant, or (if the applicant has a spouse) the combined resources of the applicant and the applicant’s spouse, available for transfer to Australia are not less than $200,000, and the applicant and the applicant’s spouse (if any) have:
(A) pension rights; or
(B) capital for investment; or
(C) both pension rights and capital for investment;
being in total money and entitlements sufficient to provide an annual income of not less than $45,000; or
(iii) the applicant is the parent of an Australian citizen who is usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen and the resources of the applicant, or (if the applicant has a spouse) the combined resources of the applicant and the applicant’s spouse, available for transfer to Australia are not less than $180,000, and the applicant and the applicant’s spouse (if any) have:
(A) pension rights; or
(B) capital for investment; or
(C) both pension rights and capital for investment;
being in total money and entitlements sufficient to provide an annual income of not less than $42,000; and
(b) both the applicant and the applicant’s spouse (if any) satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013 and 4014; and
(c) if the application was made in Australia, and at the time of application the applicant had satisfied the primary criteria for a Student (Temporary) (Class TU) visa and was the holder of a visa of that class:
(i) in the case of an applicant who is a private subsidised student, the Minister is satisfied that it would not be detrimental to Australia’s policies in respect of overseas students to grant the visa; and
(ii) in the case of an applicant who is a student under a scholarship scheme or training program approved by AusAID, the applicant has the support of AusAID for the grant of the visa; and
(d) the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
omit
substitute 410.322 If the applicant is the spouse of an established applicant, the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4013 and 4014.
substitute 410.323 If the applicant is not the spouse of an established applicant, the applicant:
(a) gives to the Minister evidence of:
(i) adequate means to support the applicant; and
(ii) adequate arrangements in Australia for health insurance;
during the period of the applicant’s intended stay in Australia; and
(b) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013 and 4014.
substitute 410.324 If the application is made in Australia, the applicant has complied substantially with the conditions that:
(a) apply to any visa of which the applicant is the holder; or
(b) applied to any visa held by the applicant immediately before becoming an unlawful non‑citizen.
substitute
(a) in the case of a visa granted to an applicant who holds, orwhose last substantive visa was, a Subclass 410 visa or an equivalent visa — for 2 years from the date of the grant; or
substitute 426.326 If the application is made outside Australia and the applicant had previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
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(a) in all cases satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4013 and 4014; and
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(e) if the applicant is applying outside Australia and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002; and
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(f) if the applicant is applying outside Australia and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002; and
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(e) if the applicant is applying outside Australia and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002; and
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(f) if the applicant is applying outside Australia and has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002; and
omit subclause 819.212;
insert clause 819.212;
Note Before ‘Papua New Guinea’ in the note after subclause 820.211 (2A), insert ‘Malaysia, New Zealand,’.
substitute
Schedule 8A Amount of partial refund (regulation 2.12I)
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In the table above:
Type A payment means a second instalment of the visa application charge assessed under any of the following subparagraphs of Schedule 1:
(a) subparagraph 1104 (2) (b) (i);
(b) subparagraph 1114 (2) (b) (i);
(c) subparagraph 1121 (2) (b) (i).
Type B payment means a second instalment of the visa application charge assessed under any of the following subparagraphs of Schedule 1:
(a) subparagraph 1104 (2) (b) (ii);
(b) subparagraph 1110 (2) (b) (i);
(c) subparagraph 1112 (2) (b) (i);
(d) subparagraph 1114 (2) (b) (ii);
(e) subparagraph 1116 (2) (b) (i);
(f) subparagraph 1117 (2) (b) (i);
(g) subparagraph 1118 (2) (b) (i);
(h) subparagraph 1120 (2) (b) (i);
(i) subparagraph 1121 (2) (b) (ii);
(j) subparagraph 1128A (2) (b) (i).
substitute
22 | Person referred to in paragraph 1223A (1) (c) of Schedule 1 who holds a Temporary Business Entry (Class UC) visa |
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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 and 285.
2. Made by the Governor-General on 27 October 1998, and notified in the
Commonwealth of Australia Gazette
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