Migration Amendment Regulations 2001 (No. 3) (Cth)

Migration Amendment Regulations 2001 (No. 3)1

Statutory Rules 2001 No. 862

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 3 May 2001

WILLIAM DEANE

Governor-General

By His Excellency’s Command

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

Contents

• •
• •
• •

1Name of Regulations

 These Regulations are the Migration Amendment Regulations 2001 (No. 3).

2Commencement

 These Regulations commence, or are taken to have commenced, as follows:

• (a)

  on 1 September 1994 — regulations 1 and 2, subregulation 3 (1) and Schedule 1;

• (b)

  on 1 July 2001 — the remainder.

3Amendment of Migration Regulations 1994

• (1)

  Schedule 1 amends the Migration Regulations 1994.

• (2)

  Schedule 2 amends the Migration Regulations 1994.

4Transitional

(1)The amendments made by items [2105] to [2107], [2201], [2314] to [2327], [2331], [2333], [2401] and [2402] of Schedule 2 apply to an application for a visa:

• (a)

  made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 July 2001; or

• (b)

  made on or after 1 July 2001.

• (2)

  The amendments made by items [2108] to [2112], [2114], [2202] to [2207], [2301] to [2313], [2328] to [2330], [2332] and [2334] to [2338] of Schedule 2 apply to an application for a visa made on or after 1 July 2001.

   

Schedule 1Amendment taken to have commenced on 1 September 1994

(regulation 3)

  

[1101]Schedule 9, Part 2, after item 1

insert

• 1A.

  A person:

  • (a)

    to whom section 10 applies; and

  • (b)

    who has not left the migration zone.

  Note Section 10 of the Act provides that a child who was born in the migration zone, and was a non-citizen when he or she was born, is taken to have entered Australia at birth. This item ensures that a newborn child is not required to give evidence of identity at the time of birth in the migration zone.

 

Schedule 2Amendments commencing on 1 July 2001

(regulation 3)

Part 2.1Amendments of Parts 1, 2 and 4

[2101]Regulation 1.03, definitions of category A course, category B course and education provider

omit

Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991

insert

Education Services for Overseas Students Act 2000

[2102]Regulation 1.03, definition of registered course and note following that definition

substitute

registered course means a course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

Note A current list of registered courses appears in the Commonwealth Register of Institutions and Courses for Overseas Students kept under section 10 of the Education Services for Overseas Students Act 2000.

[2103]Regulation 1.03, after definition of subsidised student

insert

suspended education provider means an education provider for which a suspension certificate is in effect under Division 2 of Part 6 of the Education Services for Overseas Students Act 2000.

[2104]After Division 1.5

insert

Division 1.6Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000

1.30Prescribed non-citizen

For section 101 of the Education Services for Overseas Students Act 2000, a non-citizen who is an applicant for, or the holder of, a student visa is prescribed.

[2105]Subparagraph 2.20 (6) (a) (i)

omit

visa;

insert

substantive visa;

[2106]Subparagraph 2.20 (6) (a) (ii)

omit

visa

insert

substantive visa

[2107]Paragraph 2.20 (6) (c)

omit

[2108]After subregulation 2.20 (6)

insert

• (6A)

  This subregulation applies to a non-citizen who:

  • (a)

    last held a student visa that was cancelled under section 137J of the Act; and

  • (b)

    has been refused immigration clearance.

[2109]Subparagraph 2.29 (a) (ii)

omit

a notification of the kind referred to in subclause 129.215 (2)

insert

a sponsorship of the kind referred to in clause 129.215

[2110]Subparagraph 2.29 (b) (ii)

omit

a notification of the kind referred to in subclause 130.213 (2)

insert

a sponsorship of the kind referred to in clause 130.213

[2111]Subparagraph 2.29 (c) (ii)

omit

a notification of the kind referred to in subclause 129.215 (2)

insert

a sponsorship of the kind referred to in clause 129.215

[2112]Subparagraph 2.29 (d) (ii)

omit

a notification of the kind referred to in subclause 130.213 (2)

insert

a sponsorship of the kind referred to in clause 130.213

[2113]After Subdivision 2.9.2

insert

Subdivision 2.9.2AAutomatic cancellation of student visas

2.50AMeaning of office ofImmigration

 For paragraph 137J (2) (b) of the Act, office of Immigration means a regional or area office of Immigration.

[2114]Paragraph 4.10 (1) (a)

omit

subsection 338 (2) of the Act

insert

subsection 338 (2) or (7A) of the Act

[2115]Paragraph 4.10 (1) (b)

after

subsection 338 (3)

insert

or (3A)

Part 2.2Amendments of Schedule 1

[2201]Subitem 1128B (4)

substitute

• (4)

  Subclasses:

   138 (Skilled – Australian-sponsored)

   139 (Skilled – Designated Area-sponsored)

[2202]Subitem 1301 (1)

omit

1004,

[2203]Subparagraph 1301 (3) (d) (ii)

omit

visa; or

insert

visa and have held a substantive visa when he or she made the substantive visa application; or

[2204]Paragraph 1301 (3) (e)

substitute

• (e)

  If the last substantive visa held by the applicant was cancelled:

  • (i)

    the decision to cancel that visa has been set aside by a review authority; or

  • (ii)

    if that visa was cancelled under section 137J of the Act:

    • (A)

      the cancellation has been revoked; or

    • (B)

      a decision not to revoke the cancellation has been set aside by a review authority.

[2205]Paragraph 1302 (3) (ba) 

substitute

• (ba)

  Applicant must be a person who is immigration cleared.

[2206]Subitem 1303 (1)

omit

1004,

[2207]Subitem 1305 (1)

omit

1004,

Part 2.3Amendments of Schedule 2

[2301]Paragraph 010.211 (3) (a)

substitute

• (a)

  the applicant:

  • (i)

    has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

  • (ii)

    held a substantive visa when he or she made the application; and

[2302]Paragraph 010.211 (4) (a)

substitute

• (a)

  the applicant:

  • (i)

    holds a Bridging A (Class WA) or Bridging B (Class WB) visa that:

    • (A)

      was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and

    • (B)

      is subject to conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111 or 8112; and

  • (ii)

    held a substantive visa when he or she made the substantive visa application; and

[2303]Paragraph 020.511 (c)

substitute

• (c)

  permitting the holder to travel to and enter Australia until the time set by paragraph (b), unless the Minister has specified an earlier time for the purpose.

[2304]Paragraph 020.512 (c)

substitute

• (c)

  permitting the holder to travel to and enter Australia until the time set by paragraph (b), unless the Minister has specified an earlier time for the purpose.

[2305]Subparagraph 030.511 (b) (vii)

omit

paragraph.

insert

paragraph; or

[2306]After subparagraph 030.511 (b) (vii)

insert

• (viii)

  if the substantive visa (if any) held by the holder is cancelled — that cancellation.

[2307]Clause 041.511

omit

for 5 working days after date of grant.

insert

 until:

• (a)

  the end of the fifth working day after the date of grant; or

• (b)

  if the applicant is granted a Subclass 050 (Bridging (General)) visa before the end of that day — the date of grant of the Subclass 050 (Bridging (General)) visa.

[2308]Paragraph 050.211 (1) (b)

omit

visa.

insert

visa; or

[2309]After paragraph 050.211 (1) (b)

insert

• (c)

  the holder of a Subclass 041 (Bridging (Non-applicant)) visa.

[2310]Subclause 050.212 (1)

after

(5),

insert

(5A),

[2311]After paragraph 050.212 (4) (b)

insert

• (ba)

  the applicant has applied under section 137K of the Act for revocation of the cancellation of a visa; or

• (bb)

  the applicant has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa; or

[2312]Paragraph 050.212 (4) (c)

after

paragraph (b)

insert

, (ba) or (bb)

[2313]After subclause 050.212 (5)

insert

 (5A)   An applicant meets the requirements of this subclause if:

• (a)

  the applicant held a visa that was cancelled under subsection 140 (1), (2) or (3) of the Act because another person’s visa was cancelled under section 137J of the Act; and

• (b)

  one of the following applies in relation to the person whose visa was cancelled under section 137J of the Act:

  • (i)

    he or she has applied under section 137K of the Act for revocation of the cancellation of the visa;

  • (ii)

    he or she has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of the visa;

  • (iii)

    the Minister is satisfied that he or she will make an application of a kind mentioned in subparagraph (i) or (ii).

[2314]After clause 050.513

insert

050.513A In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222 (3) applies) who has applied under section 137K of the Act for revocation of the cancellation of a visa — bridging visa:

• (a)

  coming into effect on grant; and

• (b)

  permitting the holder to stay in Australia until:

  • (i)

    if the decision on the revocation application is not to revoke the cancellation — 7 working days after the holder is notified of that decision; or

  • (ii)

    if another bridging visa is granted to the holder in respect of his or her revocation application — the grant of that bridging visa; or

  • (iii)

    if the cancellation of the visa is revoked — the revocation of the cancellation; and

• (c)

  if the decision on the revocation application is not to revoke the cancellation and the holder applies for merits review of that decision — permitting the holder to remain in Australia in accordance with the relevant paragraph of clause 050.513B.

050.513B In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222 (3) applies) who has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa — bridging visa coming into effect on grant permitting the holder to stay in Australia until:

• (a)

  if the decision under section 137L of the Act is not reversed by the review decision — 28 days after the holder is notified of the review decision; or

• (b)

  if another bridging visa is granted to the holder in respect of his or her review application — the grant of that bridging visa; or

• (c)

  if the decision not to revoke the cancellation is reversed — the reversal of that decision.

[2315]After clause 050.514

insert

050.514AA   In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222 (3) applies) to whom subsection 140 (1), (2) or (3) of the Act applies, if the person whose visa was cancelled under section 137J of the Act has applied under section 137K of the Act for revocation of the cancellation — bridging visa:

• (a)

  coming into effect on grant; and

• (b)

  permitting the holder to stay in Australia until:

  • (i)

    if the decision on the revocation application is not to revoke the cancellation — 7 working days after the person whose visa was cancelled under section 137J of the Act is notified of that decision; or

  • (ii)

    if another bridging visa is granted to the holder in respect of the revocation application — the grant of that bridging visa; or

  • (iii)

    if the cancellation of the visa is revoked — the revocation of the cancellation; and

• (c)

  if the decision on the revocation application is not to revoke the cancellation and the person whose visa was cancelled applies for merits review of that decision — permitting the holder to remain in Australia in accordance with the relevant paragraph of clause 050.514AB.

050.514AB   In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222 (3) applies) to whom subsection 140 (1), (2) or (3) of the Act applies, if the person whose visa was cancelled under section 137J of the Act has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation — bridging visa coming into effect on grant permitting the holder to stay in Australia until:

• (a)

  if the decision under section 137L of the Act is not reversed by the review decision — 28 days after the person whose visa was cancelled under section 137J of the Act is notified of the review decision; or

• (b)

  if another bridging visa is granted to the holder in respect of the review application — the grant of that bridging visa; or

• (c)

  if the decision not to revoke the cancellation is reversed — the reversal of that decision.

[2316]Paragraph 100.221 (2) (a)

substitute

• (a)

  the applicant:

  • (i)

    is the holder of a Subclass 309 (Spouse (Provisional)) visa; or

  • (ii)

    was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:

    • (A)

      was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

    • (B)

      left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2317]Paragraph 100.221 (3) (a)

substitute

• (a)

  first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:

  • (i)

    continues to be the holder of that visa; or

  • (ii)

    is no longer the holder of that visa because the visa:

    • (A)

      was granted before 1 November 1999; and

    • (B)

      has ceased to be in effect because the applicant:

      • (I)

        was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

      • (II)

        left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2318]Paragraph 100.221 (3) (b)

omit

that visa,

insert

the visa mentioned in paragraph (a),

[2319]Paragraph 100.221 (4) (a)

substitute

• (a)

  the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa and either:

  • (i)

    continues to be the holder of that visa; or

  • (ii)

    is no longer the holder of that visa because the visa:

    • (A)

      was granted before 1 November 1999; and

    • (B)

      has ceased to be in effect because the applicant:

      • (I)

        was outside Australia at the end of the 30 month period specified in the Subclass 309 visa for travelling to and entering Australia; or

      • (II)

        left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2320]Paragraph 100.221 (4) (c)

omit

that visa

insert

the visa mentioned in paragraph (a)

[2321]Clause 100.321

substitute

100.321 The applicant:

• (a)

  is the holder of a Subclass 309 (Spouse (Provisional)) visa; or

• (b)

  was the holder of a Subclass 309 (Spouse (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:

  • (i)

    was outside Australia at the end of the 30 month period specified in the

    Subclass 309 visa for travelling to and entering Australia; or

  • (ii)

    left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; or

• (c)

  is the holder of a Subclass 445 (Dependent Child) visa;

 being a visa that was granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 309 visa, and that other person has been granted a Subclass 100 visa.

[2322]Paragraph 110.221 (2) (a)

substitute

• (a)

  the applicant:

  • (i)

    is the holder of a Subclass 310 (Interdependency (Provisional)) visa; or

  • (ii)

    was the holder of a Subclass 310 (Interdependency (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:

    • (A)

      was outside Australia at the end of the 30 month period specified in the Subclass 310 visa for travelling to and entering Australia; or

    • (B)

      left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2323]Paragraph 110.221 (3) (a)

substitute

• (a)

  first entered Australia as the holder of a Subclass 310 (Interdependency (Provisional)) visa and either:

  • (i)

    continues to be the holder of that visa; or

  • (ii)

    is no longer the holder of that visa because the visa:

    • (A)

      was granted before 1 November 1999; and

    • (B)

      has ceased to be in effect because the applicant:

      • (I)

        was outside Australia at the end of the 30 month period specified in the Subclass 310 visa for travelling to and entering Australia; or

      • (II)

        left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2324]Paragraph 110.221 (3) (b)

omit

that visa,

insert

the visa mentioned in paragraph (a),

[2325]Paragraph 110.221 (4) (a)

substitute

• (a)

  the applicant first entered Australia as the holder of a Subclass 310 (Interdependency (Provisional)) visa and either:

  • (i)

    continues to be the holder of that visa; or

  • (ii)

    is no longer the holder of that visa because the visa:

    • (A)

      was granted before 1 November 1999; and

    • (B)

      has ceased to be in effect because the applicant:

      • (I)

        was outside Australia at the end of the 30 month period specified in the Subclass 310 visa for travelling to and entering Australia; or

      • (II)

        left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; and

[2326]Paragraph 110.221 (4) (c)

omit

that visa

insert

the visa mentioned in paragraph (a)

[2327]Clause 110.321

substitute

110.321 The applicant:

• (a)

  is the holder of a Subclass 310 (Interdependency (Provisional)) visa; or

• (b)

  was the holder of a Subclass 310 (Interdependency (Provisional)) visa granted before 1 November 1999 that has ceased to be in effect because the applicant:

  • (i)

    was outside Australia at the end of the 30 month period specified in the Subclass 310 visa for travelling to and entering Australia; or

  • (ii)

    left Australia after the end of the 30 month period specified in that visa for travelling to and entering Australia; or

• (c)

  is the holder of a Subclass 445 (Dependent Child) visa;

 being a visa that was granted on the basis that the applicant was a member of the family unit of another person who was the holder of a Subclass 310 visa, and that other person has been granted a Subclass 110 visa.

[2328]Clause 129.215

substitute

129.215 (1)   The applicant is sponsored (on approved form 949) by an appropriate regional authority.

 (2)   The sponsorship must:

• (a)

  be signed by an officer of the appropriate regional authority who is authorised to sign a sponsorship of that kind; and

• (b)

  bear the seal of the authority. 

[2329]Clauses 129.227, 129.312 and 129.325

omit

[2330]Clause 130.213

substitute

130.213 (1)   The applicant is sponsored (on approved form 949) by an appropriate regional authority.

 (2)   The sponsorship must:

• (a)

  be signed by an officer of the appropriate regional authority who is authorised to sign a sponsorship of that kind; and

• (b)

  bear the seal of the authority. 

[2331]Clause 130.221

omit

130.221 to 130.215.

insert

130.211 to 130.215.

[2332]Clauses 130.227, 130.312 and 130.325

omit

[2333]Part 139, heading

substitute

Subclass 139Skilled – Designated Area-sponsored

[2334]Clause 442.229

substitute

442.229 If the application is made in the migration zone and the applicant was the holder of a student visa at the time of making the application, the applicant satisfies the Minister that:

• (a)

  in connection with a registered course (or with a matter arising from that course), the applicant is required to gain practical employment experience after graduation; and

• (b)

  the employment experience is necessary for the applicant to obtain registration in a profession in which registration is a prerequisite for the practice of the profession in the applicant’s usual country of residence.

[2335]Clause 842.216

substitute

842.216 (1)   The applicant is sponsored (on approved form 949) by an appropriate regional authority.

 (2)   The sponsorship must:

• (a)

  be signed by an officer of the appropriate regional authority who is authorised to sign a sponsorship of that kind; and

• (b)

  bear the seal of the authority. 

[2336]Clauses 842.226 and 842.324

omit

[2337]Clause 843.214

substitute

843.214 (1)   The applicant is sponsored (on approved form 949) by an appropriate regional authority.

 (2)   The sponsorship must:

• (a)

  be signed by an officer of the appropriate regional authority who is authorised to sign a sponsorship of that kind; and

• (b)

  bear the seal of the authority. 

[2338]Clauses 843.226 and 843.324

omit

Part 2.4Amendments of Schedule 4

[2401]Subclause 4013 (1)

after

(2),

insert

(2A),

[2402]After subclause 4013 (2)

insert

(2A) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.

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 (disallowed by the Senate on 31 March 1999), 304, 305, 306 and 322; 1999 Nos. 8, 58, 64, 68 (as amended by 1999 Nos. 81 and 132), 76 (as amended by 1999 Nos. 81 and 132), 81 (as amended by 1999 No. 132), 82, 132, 155, 198, 220 (as amended by 1999 Nos. 259 and 321), 243, 259 (as amended by 2000 No. 259), 260 (as amended by 1999 No. 321), 321 and 325; 2000 Nos. 52, 62, 108, 192, 259 (as amended by 2000 No. 284) (item [4108] of Schedule 4 was disallowed by the Senate on 1 November 2000), 284 and 335; 2001 Nos. 27 and 47.

2. Notified in the Commonwealth of Australia Gazette on 10 May 2001.