Migration Amendment Regulations 2001 (No. 7) (Cth)

Migration Amendment Regulations 2001 (No. 7)1

Statutory Rules 2001 No. 2392

I, PETER JOHN HOLLINGWORTH, 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 29 August 2001

PETER HOLLINGWORTH

Governor-General

By His Excellency’s Command

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

1Name of Regulations

 These Regulations are the Migration Amendment Regulations 2001 (No. 7).

2Commencement

 These Regulations commence on 1 November 2001.

3Amendment of Migration Regulations 1994

Schedule 1 amends the Migration Regulations 1994.

4Transitional

• (1)

  The amendments made by items [1] to [6], [38] to [54] and [60] to [73] of Schedule 1 apply in relation to an application for a visa made on or after 1 November 2001. 

• (2)

  The amendments made by items [20], [21], [30] and [31] of Schedule 1 apply to a notice that is given on or after 1 November 2001.

• (3)

  The amendment made by item [25] of Schedule 1 applies to an application for review that is withdrawn on or after 1 November 2001.

• (4)

  The amendments made by items [26] to [29] of Schedule 1 apply if the invitation to give additional information, or to comment on information, is given on or after 1 November 2001.

• (5)

  The amendments made by items [55] to [59] of Schedule 1 apply in relation 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 November 2001; or

  • (b)

    made on or after 1 November 2001. 

Schedule 1Amendments

(regulation 3)

  

[1]Sub-subparagraph 1.05 (2) (a) (ii) (A)

substitute

• (A)

  an eligible New Zealand citizen; and

[2]Paragraph 1.05 (2) (b)

omit

holders of special category visas

insert

eligible New Zealand citizens

[3]Subregulation 2.12 (1)

omit

the purposes of

[4]Paragraph 2.12 (1) (a)

substitute

• (a)

  subject to subregulation (2), Special Eligibility (Residence) (Class AO);

[5]Before subregulation 2.12 (3)

insert

• (2)

  Paragraph (1) (a) applies to a person if he or she meets the requirements of subclause 832.211 (3) of Schedule 2.

[6]After regulation 2.27B

insert

2.27CSkilled occupation in Australia

 In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant held a substantive visa authorising him or her to work during that period.

[7]Regulation 3.08

omit

A person who

insert

• (1)

  A person who

[8]Regulation 3.08, after the penalty

insert

• (2)

  Strict liability applies to subregulation (1).

[9]Subregulation 3.11 (2)

omit

, without reasonable excuse,

[10]Subregulation 3.11 (2), at the foot

insert

Penalty:   10 penalty units.

[11]After subregulation 3.11 (2)

insert

• (3)

  Subregulation (2) does not apply if the master has a reasonable excuse.

Note A defendant bears an evidential burden in relation to the matter in subregulation (3) (see subsection 13.3 (3) of the Criminal Code).

[12]Regulation 3.12, at the foot

insert

Penalty:   10 penalty units.

[13]Subregulation 3.14 (1), note

omit

[14]Subregulation 3.14 (1), at the foot

insert

Penalty:   10 penalty units.

[15]Subregulation 3.14 (5), at the foot

insert

Penalty:   10 penalty units.

[16]Subregulation 3.15 (4), at the foot

insert

Penalty:   10 penalty units.

[17]Subregulation 3.16 (2), at the foot

insert

Penalty:   10 penalty units.

[18]Subregulation 3.17 (2), at the foot

insert

Penalty:   10 penalty units.

[19]Subregulations 4.02 (2) and (3)

omit

[20]Paragraph 4.10 (1) (b)

substitute

• (b)

  if the MRT-reviewable decision is mentioned in subsection 338 (3) or (3A) of the Act — starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or

[21]Paragraph 4.10 (2) (b)

substitute

• (b)

  in any other case — starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received. 

[22]Subregulation 4.10 (3)

omit

[23]Subregulation 4.10 (6)

substitute

• (6)

  An application that is sent to the Tribunal by fax or other electronic means is taken to be given to the Tribunal at the time the fax or transmission is received at a registry of the Tribunal.

[24]Regulation 4.11

substitute

4.11Giving the application to the Tribunal

 An application for review by the Tribunal must be given to the Tribunal:

• (a)

  in the case of a primary decision relating to an applicant who is in immigration detention:

  • (i)

    at a registry of the Tribunal:

    • (A)

      by posting it to that registry; or

    • (B)

      by leaving it at that registry in a box designated for receiving applications; or

    • (C)

      by leaving it with an officer of the Tribunal at that registry; or

    • (D)

      by sending it to that registry by fax; or

    • (E)

      by transmitting it to that registry by other electronic means specified in a direction given by the Principal Member under section 353A of the Act; or

  • (ii)

    by giving it to an officer of Immigration at a detention centre, or at an office occupied by an officer of Immigration at an airport, at least 1 working day before the expiry of the period in which the application for review must be given to the Tribunal under regulation 4.10; or

• (b)

  in any other case — at a registry of the Tribunal by any method set out in sub-subparagraph (a) (i) (A), (B), (C), (D) or (E). 

[25]After subparagraph 4.14 (2) (a) (ii)

insert

• (iii)

  a review applicant; or

[26]Subregulations 4.17 (2) and (3)

substitute

• (2)

  If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 2 working days after the day on which the invitation is received.

• (3)

  If the invitation relates to an application for review of a decision to cancel, or a decision not to revoke the cancellation of, a visa that applies to a person who is not a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 5 working days after the day on which the invitation is received.

[27]Subregulations 4.18 (2), (3) and (4)

substitute

• (2)

  If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends:

  • (a)

    at the end of 2 working days after the day on which the invitation is received; or

  • (b)

    if the person agrees in writing — at the end of 1 working day after the day on which the invitation is received. 

• (3)

  If the invitation relates to an application for review of a decision that applies to a person who is not a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends:

  • (a)

    at the end of 5 working days after the day on which the invitation is received; or

  • (b)

    if the person agrees in writing — at the end of a shorter period that is not less than 1 working day. 

[28]Subregulations 4.18A (2) and (3)

substitute

• (2)

  If the invitation relates to an application for review of a decision that applies to a detainee, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 2 working days after the day on which the notice is received.

• (3)

  If the invitation relates to an application for review of a decision to cancel, or a decision not to revoke the cancellation of, a visa that applies to a person who is not a detainee, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 5 working days after the day on which the notice is received.

[29]Subregulations 4.18B (2) and (3)

substitute

• (2)

  If the invitation relates to an application for review of a decision that applies to a detainee, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 2 working days after the day on which the notice is received. 

• (3)

  If the invitation relates to an application for review of a decision to cancel, or a decision not to revoke the cancellation of, a visa that applies to a person who is not a detainee, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 5 working days after the day on which the notice is received. 

[30]Paragraph 4.21 (b)

substitute

• (b)

  in any other case — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends:

  • (i)

    at the end of 7 working days after the day on which the notice is received; or

  • (ii)

    if the applicant agrees in writing — at the end of a shorter period that is not less than 1 working day. 

[31]Paragraph 4.27A (b)

substitute

• (b)

  ends:

  • (i)

    at the end of 5 working days after the day on which the notice is received; or

  • (ii)

    if the applicant agrees in writing — at the end of a shorter period that is not less than 1 working day. 

[32]Regulation 5.05

omit

A person who

insert

• (1)

  A person who

[33]Regulation 5.05, after the penalty

insert

• (2)

  Strict liability applies to subregulation (1).

[34]Regulation 5.09

substitute

5.09Offences by witnesses

• (1)

  A person summoned to attend before a Commissioner as a witness must not:

  • (a)

    fail to attend, after payment or tender to the person of a reasonable sum for expenses of attendance; or

  • (b)

    refuse to be sworn or to make an affirmation as a witness; or

  • (c)

    refuse to answer any question when required to do so by the Commissioner; or

  • (d)

    refuse or fail to produce a book or document which the person was required by the summons to produce.

Penalty:   10 penalty units.

• (2)

  Paragraphs (1) (a) and (d) do not apply if the person has a reasonable excuse.

Note A defendant bears an evidential burden in relation to the matter in subregulation (2) (see subsection 13.3 (3) of the Criminal Code).

• (3)

  Strict liability applies to paragraph (1) (a).

[35]Paragraph 5.12 (a)

omit

wilfully

insert

intentionally

[36]Paragraph 5.12 (d)

omit

improperly

insert

dishonestly

[37]Regulation 5.34

substitute

5.34Application of Chapter 2 of the Criminal Code

Chapter 2 of the Criminal Code applies, on and after 1 November 2001, to offences against these Regulations.

[38]Schedule 1, paragraph 1128AA (3) (a)

substitute

• (a)

  Application must be made in Australia but not in immigration clearance. 

• (aa)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[39]Schedule 1, paragraph 1128B (3) (a)

substitute

• (a)

  Application must be made in Australia but not in immigration clearance. 

• (aa)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[40]Schedule 1, subparagraph 1128BA (3) (c) (i)

omit

during the 3 months immediately before the day on which the application is made,

[41]Schedule 1, paragraph 1128BA (3) (h)

substitute

• (h)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[42]Schedule 1, paragraph 1128C (3) (a)

substitute

• (a)

  Application must be made in Australia but not in immigration clearance. 

• (aa)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[43]Schedule 1, paragraph 1128CA (3) (c)

substitute

• (c)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[44]Schedule 1, subparagraph 1128CA (3) (d) (i)

omit

during the 3 months immediately before the day on which the application is made,

[45]Schedule 1, paragraph 1128D (3) (aa)

substitute

• (aa)

  Application must be made by:

  • (i)

    posting the application (with the correct pre‑paid postage) to the post office box address specified by the Minister; or

  • (ii)

    having the application delivered by a courier service to the address specified by the Minister. 

[46]Schedule 1, paragraph 1223A (3) (aa)

omit

Subject to paragraph (ab),

insert

Subject to paragraphs (ab) and (ad),

[47]Schedule 1, after paragraph 1223A (3) (ac)

insert

• (ad)

  An application by an applicant who:

  • (i)

    holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the applicant met the requirements of subclause 457.223 (7) of Schedule 2; and

  • (ii)

    on the day on which the application is made:

    • (A)

      had been conducting the business in Australia as a principal for at least 15 months; or

    • (B)

      if the applicant had been conducting the business in Australia as a principal for less than 15 months — had received an endorsement of the business as beneficial to a State or Territory from the government of the State or Territory;

 must be made in Australia, but not in immigration clearance.

[48]Schedule 2, clause 050.611

omit

8201, 8401,

insert

8201, 8207, 8401,

[49]Schedule 2, clause 050.611A

omit

8201, 8401,

insert

8201, 8207, 8401,

[50]Schedule 2, paragraph 050.611B (b)

omit

8201, 8505

insert

8201, 8207, 8505

[51]Schedule 2, subclause 050.612A (3)

omit

8201, 8401,

insert

8201, 8207, 8401,

[52]Schedule 2, clause 050.613

omit

conditions 8201, 8401,

insert

conditions 8201, 8207, 8401,

[53]Schedule 2, subclause 050.613A (2)

omit

8201, 8401,

insert

8201, 8207, 8401,

[54]Schedule 2, clause 050.614

omit

8201, 8401,

insert

8201, 8207, 8401,

[55]Schedule 2, after clause 134.612

insert

134.613 Condition 8515 may be imposed. 

[56]Schedule 2, after clause 136.612

insert

136.613 Condition 8515 may be imposed. 

[57]Schedule 2, after clause 137.612

insert

137.613 Condition 8515 may be imposed. 

[58]Schedule 2, after clause 138.612

insert

138.613 Condition 8515 may be imposed. 

[59]Schedule 2, after clause 139.612

insert

139.613 Condition 8515 may be imposed. 

[60]Schedule 2, clause 442.223

substitute

442.223 The Minister is satisfied:

• (a)

  that the occupational training that is proposed:

  • (i)

    is workplace-based; and

  • (ii)

    will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment after leaving Australia; and

• (b)

  that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.

[61]Schedule 2, subclause 457.223 (1)

omit

(7), (8) or (9).

insert

(7), (7A), (8) or (9).

[62]Schedule 2, after subclause 457.223 (7)

insert

 (7A)   The applicant meets the requirements of this subclause if:

• (a)

  the applicant is the holder of a Subclass 457 visa granted on the basis that the applicant met the requirements of subclause (7); and

• (b)

  on the day on which the application is made:

  • (i)

    the applicant had been conducting the business in Australia as a principal for at least 15 months; or

  • (ii)

    if the applicant had been conducting the business in Australia as a principal for less than 15 months — a government of a State or Territory had endorsed the business as beneficial to the State or Territory; and

• (c)

  the Minister is satisfied that:

  • (i)

    the business is of benefit to Australia; and

  • (ii)

    the applicant has a genuine and realistic commitment:

    • (A)

      to maintain an ownership interest in the business; and

    • (B)

      to maintain a direct and continuous involvement in the management of the business; and

    • (C)

      to make decisions that affect the overall direction and performance of the business from day to day; and

  • (iii)

    nothing adverse is known to Immigration about the applicant’s business background; and

  • (iv)

    the applicant has net assets of:

    • (A)

      not less than AUD250,000; or

    • (B)

      a lesser amount that is adequate;

   to conduct the business; and

  • (v)

    the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct the business.

[63]Schedule 2, paragraph 457.224 (b)

substitute

• (b)

  if:

  • (i)

    the applicant is the holder of a visa granted on the basis that the applicant met the requirements of subclause 457.223 (7); and

  • (ii)

    the applicant seeks a visa on the basis that the applicant meets the requirements of subclause 457.223 (7A);

 public interest criterion 4005; and

• (c)

  except where the applicant meets the requirements of subclause 457.223 (9) — public interest criterion 4006A.

[64]Schedule 2, after clause 457.226

insert

457.227 (1)   In relation to the family unit of an applicant who seeks to meet the requirements of subclause 457.223 (7A), each member of the family unit who is an applicant for a Subclass 457 visa is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013 and 4014; and

• (b)

  if he or she has previously been in Australia, satisfies special return criteria 5001 and 5002.

 (2)   In relation to the family unit of an applicant who seeks to meet the requirements of subclause 457.223 (7A), each member of the family unit who is not an applicant for a Subclass 457 visa is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003 and 4004; and

• (b)

  satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

[65]Schedule 2, after paragraph 457.325 (a)

insert

• (aa)

  if the applicant is a member of the family unit of an applicant who seeks to meet the requirements of subclause 457.223 (7A) — satisfies public interest criterion 4005; and

[66]Schedule 2, paragraph 457.511 (c)

substitute

• (c)

  in the case of a holder of a visa granted on the basis that the holder met the requirements of subclause 457.223 (7A) — to remain in Australia for a period of 2 years from the date of the grant; and

• (d)

  in any case — to travel to, and enter, Australia on multiple occasions before the end of the relevant period.

[67]Schedule 2, paragraph 832.221 (2) (b)

omit

Australia.

insert

Australia; and

[68]Schedule 2, after paragraph 832.221 (2) (b)

insert

• (c)

  the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

• (d)

  if the applicant has previously been in Australia — the applicant satisfies special return criteria 5001 and 5002.

[69]Schedule 2, paragraph 832.221 (3) (b)

omit

Australia.

insert

Australia; and

[70]Schedule 2, after paragraph 832.221 (3) (b)

insert

• (c)

  the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

• (d)

  if the applicant has previously been in Australia — the applicant satisfies special return criteria 5001 and 5002.

[71]Schedule 2, paragraph 832.221 (4) (b)

substitute

• (b)

  the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

• (c)

  if the applicant has previously been in Australia — the applicant satisfies special return criteria 5001 and 5002.

[72]Schedule 2, clause 832.222

substitute

832.222 (1)   In relation to the family unit of the applicant, each member of the family unit who is an applicant for a Subclass 832 visa is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

• (b)

  if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.

 (2)   In relation to the family unit of the applicant, each member of the family unit who is not an applicant for a Subclass 832 visa is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003 and 4004; and

• (b)

  satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

[73]Schedule 2, clause 832.322

substitute

832.322 The applicant is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; and

• (b)

  if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.   

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, 47, 86, 142, 162 and 206.

2. Notified in the Commonwealth of Australia Gazette