Migration Amendment Regulations 2002 (No. 7) (Cth)

Migration Amendment Regulations 2002 (No. 7)1

Statutory Rules 2002 No. 2992

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 27 November 2002

PETER HOLLINGWORTH

Governor-General

By His Excellency’s Command

PHILIP RUDDOCK

Minister for Immigration and Multicultural and Indigenous Affairs

Contents

1Name of Regulations

These Regulations are the Migration Amendment Regulations 2002 (No. 7).

2Commencement

These Regulations commence as follows:

1. (a)

   on 9 December 2002 — regulations 1 to 4 and Schedule 1;

2. (b)

   on 5 January 2003 — Schedule 2.

3Amendment of Migration Regulations 1994

Schedules 1 and 2 amend the Migration Regulations 1994.

4Transitional

1. (1)

   The amendment made by item [1103] applies in relation to a request to have a dependent child added to an application for a Resolution of Status (Temporary) (Class UH) visa, made on or after 9 December 2002.

2. (2)

   The amendments made by items [1301] to [1347] apply in relation to an application for a visa:

   1. (a)

      made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 9 December 2002; or

   2. (b)

      made on or after 9 December 2002.

Schedule 1Amendments commencing on 9 December 2002

(regulation 3)

Part1Amendments of Parts 1 and 2

[1101]Subregulation 1.20GA (2)

substitute

1. (2)

   The person is:

   1. (a)

      a pre-qualified business sponsor; or

   2. (b)

      a standard business sponsor;

other than a sponsor whose business activities include recruitment or labour hire activities.

[1102]Subregulation 1.20GA (4)

substitute

1. (4)

   If the person is mentioned in paragraph (2) (b), the nomination must also be accompanied by a fee of $235.

[1103]Subparagraph 2.08B (1) (ba) (ii)

substitute

1. (ii)

   for a request in relation to an application for a Resolution of Status (Temporary) (Class UH) visa:

   1. (A)

      after the application is made but before it is decided; or

   2. (B)

      after a decision to grant the visa is made; and

[1104]After regulation 2.08F

insert

2.08GCertain persons taken to have applied for Partner (Migrant) (Class BC) visas

1. (1)

   This regulation applies if:

   1. (a)

      a person held, before 9 December 2002:

      1. (i)

         a Subclass 309 (Spouse (Provisional)) visa; or

      2. (ii)

         a Subclass 310 (Interdependency (Provisional)) visa;

   which the Minister decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the person; and

   1. (b)

      the person lodged form 47SP in Australia, after the Minister’s decision mentioned in paragraph (a) and before 9 December 2002; and

   2. (c)

      the first instalment of the visa application charge in relation to the lodgment of the form was paid before 9 December 2002.

2. (2)

   On and after 9 December 2002, the lodgment of the form is taken to be a valid application by the person for a Partner (Migrant) (Class BC) visa.

3. (3)

   This regulation applies in addition to regulation 2.08E.

Part2Amendments of Schedule 1

[1201]Paragraphs 1129 (3) (a), (b), (c) and (d)

substitute

1. (a)

   Application otherwise than by the holder of:

   1. (i)

      a Subclass 445 (Dependent Child) visa; or

   2. (ii)

      a Subclass 309 (Spouse (Provisional)) visa, or a Subclass 310 (Interdependency (Provisional)) visa, which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant;

must be made outside Australia.

1. (b)

   Application by the holder of:

   1. (i)

      a Subclass 445 (Dependent Child) visa; or

   2. (ii)

      a Subclass 309 (Spouse (Provisional)) visa, or a Subclass 310 (Interdependency (Provisional)) visa, which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant;

may be made in or outside Australia, but not in immigration clearance.

1. (c)

   Applicant other than an applicant who is the holder of:

   1. (i)

      a Subclass 445 (Dependent Child) visa; or

   2. (ii)

      a Subclass 309 (Spouse (Provisional)) visa, or a Subclass 310 (Interdependency (Provisional)) visa, which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant;

must be outside Australia.

1. (d)

   Applicant who is the holder of:

   1. (i)

      a Subclass 445 (Dependent Child) visa; or

   2. (ii)

      a Subclass 309 (Spouse (Provisional)) visa, or a Subclass 310 (Interdependency (Provisional)) visa, which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant;

may be in or outside Australia, but not in immigration clearance.

[1202]Subitem 1301 (1)

after

866,

insert

918,

[1203]Subitem 1303 (1)

after

866,

insert

918,

[1204]Subitem 1305 (1)

after

866,

insert

918,

Part3Amendments of Schedule 2

[1301]Division 100.1

substitute

100.1Interpretation

100.111 In this Part:

sponsoring spouse, in relation to an applicant, means:

1. (a)

   the person who was specified as the applicant’s spouse or intended spouse in the application that resulted in the grant of the Subclass 309 (Spouse (Provisional)) visa referred to in paragraph 100.221 (2) (a), (3) (a) or (4) (a), as the case requires; or

2. (b)

   for a person to whom the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant a Subclass 309 (Spouse (Provisional)) visa — the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the spouse of that person at the time the visa was granted.

Note Australian permanent resident, eligible New Zealand citizen, long-term spouse relationship and permanent humanitarian visa are defined in regulation 1.03. For spouse see regulation 1.15A.

[1302]Subclause 100.221 (1)

after

(2),

insert

(2A),

[1303]After subclause 100.221 (2)

insert

(2A) The applicant meets the requirements of this subclause if:

1. (a)

   the applicant is the holder of a Subclass 309 (Spouse (Provisional)) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the applicant is the spouse of the sponsoring spouse; and

3. (c)

   subject to subclauses (5), (6) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

[1304]Paragraph 100.221 (3) (b)

after

(2)

insert

or (2A)

[1305]Paragraph 100.221 (4) (b)

after

(2)

insert

or (2A)

[1306]Subclause 100.221 (5)

omit

Paragraph (2) (c) does not

insert

Paragraphs (2) (c) and (2A) (c) do not

[1307]Subclause 100.221 (6)

omit

Paragraph (2) (c) does not

insert

Paragraphs (2) (c) and (2A) (c) do not

[1308]Subclause 100.221 (7)

omit

paragraph (2) (c)

insert

paragraphs (2) (c) and (2A) (c)

[1309]Clause 100.226

substitute

100.226 If:

1. (a)

   at least 2 years have passed since the application was made; and

1. (b)

   the applicant does not meet the requirements of subclause 100.221 (2A), (3) or (4);

the applicant is nominated for the grant of the Subclass 100 visa by the sponsoring spouse.

[1310]Paragraph 100.321 (c)

omit

Subclass 100 visa.

insert

Subclass 100 visa; or

[1311]After paragraph 100.321 (c)

insert

1. (d)

   the applicant is:

   1. (i)

      the holder of:

      1. (A)

         a Subclass 445 (Dependent Child) visa; or

      2. (B)

         a Subclass 309 (Spouse (Provisional)) visa;

   which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

   1. (ii)

      the dependent child, or a member of the family unit, as the case requires, of another person who was the holder of a Subclass 445 (Dependent Child) visa or a Subclass 309 (Spouse (Provisional)) visa;

and the other person has been granted a Subclass 100 visa.

[1312]Division 110.1

substitute

110.1Interpretation

110.111 In this Part:

sponsor means:

1. (a)

   in relation to an applicant who is the holder of a Subclass 310 (Interdependency (Provisional)) visa — the person who sponsored the applicant for the grant of that visa; or

2. (b)

   in relation to an applicant to whom the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant a Subclass 310 (Interdependency (Provisional)) visa — the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was in an interdependent relationship with the applicant at the time the visa was granted.

Note Australian permanent resident, eligible New Zealand citizen and long-term interdependent relationship are defined in regulation 1.03. For interdependent relationship see regulation 1.09A.

[1313]Subclause 110.221 (1)

after

(2),

insert

(2A),

[1314]After subclause 110.221 (2)

insert

(2A) The applicant meets the requirements of this subclause if:

1. (a)

   the applicant is the holder of a Subclass 310 (Interdependency (Provisional)) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the applicant is in an interdependent relationship with the sponsor; and

3. (c)

   subject to subclauses (5) and (6), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

[1315]Paragraph 110.221 (3) (b)

after

(2)

insert

or (2A)

[1316]Paragraph 110.221 (4) (b)

after

(2)

insert

or (2A)

[1317]Subclause 110.221 (5)

omit

Paragraph (2) (c) does not

insert

Paragraphs (2) (c) and (2A) (c) do not

[1318]Subclause 110.221 (6)

omit

paragraph (2) (c)

insert

paragraphs (2) (c) and (2A) (c)

[1319]Clause 110.226

substitute

110.226 If:

1. (a)

   at least 2 years have passed since the application was made; and

2. (b)

   the applicant does not meet the requirements of subclause 110.221 (2A), (3) or (4);

the applicant is nominated for the grant of the Subclass 110 visa by the sponsor.

[1320]Paragraph 110.321 (c)

omit

Subclass 110 visa.

insert

Subclass 110 visa; or

[1321]After paragraph 110.321 (c)

insert

1. (d)

   the applicant is:

   1. (i)

      the holder of:

      1. (A)

         a Subclass 445 (Dependent Child) visa; or

      2. (B)

         a Subclass 310 (Interdependency (Provisional)) visa;

   which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

   1. (ii)

      the dependent child, or a member of the family unit, as the case requires, of another person who was the holder of a Subclass 445 (Dependent Child) visa or a Subclass 310 (Interdependency (Provisional)) visa;

and that other person has been granted a Subclass 110 visa.

[1322]Clause 801.111, definition of sponsoring spouse

substitute

sponsoring spouse means:

1. (a)

   the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for the Subclass 820 (Spouse) visa as the spouse of the applicant; or

2. (b)

   for a person to whom the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant a Subclass 820 (Spouse) visa — the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the spouse of that person at the time the visa was granted.

[1323]Clause 801.111, note

substitute

Note Australian permanent resident, eligible New Zealand citizen and long-term spouse relationship are defined in regulation 1.03. For spouse see regulation 1.15A.

[1324]Subclause 801.221 (1)

after

(2),

insert

(2A),

[1325]After subclause 801.221 (2)

insert

(2A) An applicant meets the requirements of this subclause if:

1. (a)

   the applicant is the holder of a Subclass 820 (Spouse) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the applicant is the spouse of the sponsoring spouse; and

3. (c)

   subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

[1326]Paragraph 801.221 (5) (b)

after

(2)

insert

or (2A)

[1327]Paragraph 801.221 (6) (b)

after

(2)

insert

or (2A)

[1328]Subclause 801.221 (6A)

omit

Paragraph (2) (d) does not

insert

Paragraphs (2) (d) and (2A) (c) do not

[1329]Subclause 801.221 (7)

omit

paragraph (2) (d)

insert

paragraphs (2) (d) and (2A) (c)

[1330]Subclause 801.224 (3)

omit

subclause 801.321

insert

clause 801.321

[1331]Subdivision 801.31

substitute

801.31Criteria to be satisfied at time of application

801.311 (1) The applicant meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant is:

1. (a)

   a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or

2. (b)

   a member of the family unit of a person who:

   1. (i)

      is the holder of, or has been the holder of, a prospective marriage (temporary) visa; and

   2. (ii)

      has applied for a Partner (Residence) (Class BS) visa;

and the Minister has not decided to grant or refuse to grant a visa to the person.

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

1. (a)

   the applicant is the holder of a Subclass 820 (Spouse) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the applicant is a member of the family unit of a person who:

   1. (i)

      is the holder of a Subclass 820 (Spouse) visa; and

   2. (ii)

      has applied for a Partner (Residence) (Class BS) visa; and

3. (c)

   the Minister has not decided to grant or refuse to grant a visa to the person.

[1332]Paragraph 801.321 (a)

omit

either:

insert

any of the following applies:

[1333]Subparagraph 801.321 (a) (i)

omit

visa; or

insert

visa;

[1334]Subparagraph 801.321 (a) (ii)

omit

member; and

insert

member;

[1335]After subparagraph 801.321 (a) (ii)

insert

1. (iii)

   the applicant is:

   1. (A)

      the holder of:

      1. (I)

         a Subclass 445 (Dependent Child) visa; or

      2. (II)

         a Subclass 820 (Spouse) visa;

   which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

   1. (B)

      the dependent child, or a member of the family unit, as the case requires, of another person who was the holder of a Subclass 445 (Dependent Child) visa or a Subclass 820 (Spouse) visa; and

[1336]Division 814.1

substitute

814.1Interpretation

814.111 In this Part:

sponsor means:

1. (a)

   the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for a Subclass 826 (Interdependency) visa; or

2. (b)

   for a person to whom the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant a Subclass 826 (Interdependency) visa — the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was in an interdependent relationship with that person at the time the visa was granted.

Note Australian permanent resident, eligible New Zealand citizen and long-term interdependent relationship are defined in regulation 1.03. For interdependent relationship see regulation 1.09A.

[1337]Subclause 814.221 (1)

after

(3),

insert

(3A),

[1338]After subclause 814.221 (3)

insert

(3A) An applicant meets the requirements of this subclause if:

1. (a)

   the applicant is the holder of a Subclass 826 (Interdependency) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the Minister is satisfied that the applicant is in an interdependent relationship with the sponsor; and

3. (c)

   subject to subclauses (5A) and (6), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

[1339]Paragraph 814.221 (5) (b)

omit

(2) or (3)

insert

(2), (3) or (3A)

[1340]Subclause 814.221 (5A)

omit

Paragraph (3) (d) does not

insert

Paragraphs (3) (d) and (3A) (c) do not

[1341]Subclause 814.221 (6)

omit

paragraph (3) (d)

insert

paragraphs (3) (d) and (3A) (c)

[1342]Paragraph 814.221 (8) (b)

omit

(2) or (3)

insert

(2), (3) or (3A)

[1343]Subdivision 814.31

substitute

814.31Criteria to be satisfied at time of application

814.311 (1) The applicant meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant is a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa, and the Minister has not decided to grant or refuse to grant a visa to that person.

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

1. (a)

   the applicant is the holder of a Subclass 826 (Interdependency) visa which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

2. (b)

   the applicant is a member of the family unit of a person who:

   1. (i)

      is the holder of a Subclass 826 (Interdependency) visa; and

   2. (ii)

      has applied for a Partner (Residence) (Class BS) visa; and

3. (c)

   the Minister has not decided to grant or refuse to grant a visa to the person.

[1344]Paragraph 814.321 (a)

omit

either:

insert

any of the following applies:

[1345]Subparagraph 814.321 (a) (i)

omit

visa; or

insert

visa;

[1346]Subparagraph 814.321 (a) (ii)

omit

child; and

insert

child;

[1347]After subparagraph 814.321 (a) (ii)

insert

1. (iii)

   the applicant is:

   1. (A)

      the holder of:

      1. (I)

         a Subclass 445 (Dependent Child) visa; or

      2. (II)

         a Subclass 826 (Interdependency) visa;

   which the Minister has decided, under section 345, 351, 391, 417, 454 or 501J of the Act, to grant to the applicant; and

   1. (B)

      the dependent child, or a member of the family unit, as the case requires, of another person who was the holder of a Subclass 445 (Dependent Child) visa or a Subclass 826 (Interdependency) visa; and

Schedule 2Amendments commencing on 5 January 2003

(regulation 3)

  

[2101]Subregulations 3.09 (2) and (3)

substitute

1. (2)

   Subregulation (2A) applies in relation to a person who travels, or appears to intend to travel, on an overseas vessel from a port in Australia to another port in Australia without calling at a port outside Australia.

2. (2A)

   The person may be required by an officer at either port or both ports in Australia to provide evidence of his or her identity to the officer by producing a document of a kind mentioned in subregulation (3) that:

   1. (a)

      bears a photograph and the full name of the person; and

   2. (b)

      is in force.

3. (3)

   For subregulation (2A), the kinds of document are the following:

   1. (a)

      a passport issued to the person that is in the form in which it was issued;

   2. (b)

      a licence to drive a motor vehicle issued under a law of the Commonwealth, or a State or Territory;

   3. (c)

      a document issued by the Commonwealth, or a State or Territory, or by a Commonwealth, State or Territory authority, that identifies the person;

   4. (d)

      if the vessel is an aircraft — an aviation security identity card issued by:

      1. (i)

         the operator of the aircraft; or

      2. (ii)

         the operator of an airport in Australia.

[2102]Paragraph 3.09 (5) (a)

substitute

1. (a)

   who is under 18; and

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 and 2002 No. 213), 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, 206, 239, 246, 283, 284, 285 and 291; Act No. 128, 2001; Statutory Rules 2001 No. 344; 2002 Nos. 10, 86, 121, 129 (disallowed by the Senate on 19 June 2002), 213 and 230.

2. Notified in the Commonwealth of Australia Gazette on 4 December 2002.