Migration Amendment Regulations 2003 (No. 2) (Cth)

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Migration Amendment Regulations 2003 (No. 2)1

Statutory Rules 2003 No. 942

I, GUY STEPHEN MONTAGUE GREEN, Administrator of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 15 May 2003

G. S. M. GREEN

Administrator

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 2003 (No. 2).

2Commencement

These Regulations commence as follows:

  1. (a)

    on gazettal — regulations 1 to 4 and Schedule 1;

  2. (b)

    on 1 July 2003 — regulation 5 and Schedule 2.

3Amendment of Migration Regulations 1994

Schedules 1 and 2 amend the Migration Regulations 1994.

4Transitional – amendments made by Schedule 1

The amendments made by Schedule 1 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 the date of commencement of Schedule 1; or

  2. (b)

    made on or after the date of commencement of Schedule 1.

5Transitional – amendments made by Schedule 2
  1. (1)

    The amendment made by item [2321] applies 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 1 July 2003; or

    2. (b)

      made on or after 1 July 2003.

  2. (2)

    The amendments made by items [2103], [2301], [2302], [2303], [2304], [2305], [2306], [2307], [2308], [2309], [2310], [2311], [2312], [2313], [2314], [2315], [2316], [2317], [2318], [2319], [2320], [2322], [2323], [2324], [2325], [2327], [2328], [2331], [2332], [2401] and [2402] apply in relation to an application for a visa made on or after 1 July 2003.

Schedule 1Amendments commencing on gazettal

(regulation 3)

Part1Amendments of Schedule 2

[1101]Subclause 050.212 (1)

after

(6),

insert

(6AA),

[1102]Subclause 050.212 (6)

substitute

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

  1. (a)

    the applicant is the subject of:

    1. (i)

      a decision in relation to an application made in Australia for a visa; or

    2. (ii)

      a decision to cancel a visa; and

  2. (b)

    in relation to the decision mentioned in paragraph (a):

    1. (i)

      the applicant:

      (A) 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

      1. (B)

        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 a more favourable decision; and

      2. (C)

        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

    2. (ii)

      the Minister is personally considering whether to exercise, or to consider the exercise of, the Minister’s powers to substitute a more favourable decision for a decision under section 345, 351, 391, 417 or 454 of the Act in relation to the applicant.

(6AA) An applicant meets the requirements of this subclause if 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.

[1103]Paragraph 050.212 (6A) (a)

after

(6)

insert

or (6AA)

[1104]Subparagraph 050.212 (6A) (b) (i)

substitute

  1. (i)

    the applicant is the subject of:

    1. (A)

      a decision in relation to an application made in Australia for a visa; or

    2. (B)

      a decision to cancel a visa;

and the Minister is personally considering whether to exercise the Minister’s powers to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act in relation to that decision; or

[1105]After subparagraph 050.612A (1) (a) (vii)

insert

  1. (viia)

    subclause 050.212 (6AA);

[1106]Paragraph 100.321 (d)

substitute

  1. (d)

    is a person:

    1. (i)

      who holds:

      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)

      who, at the time the visa mentioned in subparagraph (i) was granted, was the dependent child, or a member of the family unit, as the case requires, of another person:

      1. (A)

        who, at the time mentioned in subparagraph (ii), was the holder of a Subclass 445 (Dependent Child) or Subclass 309 (Spouse (Provisional)) visa; and

      2. (B)

        who, since the time mentioned in subparagraph (ii), has been granted a Subclass 100 visa.

[1107]Paragraph 110.321 (d)

substitute

  1. (d)

    is a person:

    1. (i)

      who holds:

      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)

      who, at the time the visa mentioned in subparagraph (i) was granted, was the dependent child, or a member of the family unit, as the case requires, of another person:

      1. (A)

        who, at the time mentioned in subparagraph (ii), was the holder of a Subclass 445 (Dependent Child) or Subclass 310 (Interdependency (Provisional)) visa; and

      2. (B)

        who, since the time mentioned in subparagraph (ii), has been granted a Subclass 110 visa.

[1108]Subparagraph 801.321 (a) (iii)

substitute

  1. (iii)

    the applicant is a person:

    1. (A)

      who holds:

      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)

      who, at the time the visa mentioned in sub‑subparagraph (A) was granted, was 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) or Subclass 820 (Spouse) visa; and

[1109]Subparagraph 814.321 (a) (iii)

substitute

  1. (iii)

    the applicant is a person:

    1. (A)

      who holds:

      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)

      who, at the time the visa mentioned in sub‑subparagraph (A) was granted, was 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) or Subclass 826 (Interdependency) visa; and

Schedule 2Amendments commencing on 1 July 2003

(regulation 3)

Part1Amendments of Parts 1 to 3

[2101]After subregulation 1.12 (4)

insert

  1. (5)

    In addition to subregulation (1), a person is a member of the family unit of an applicant for a Business Skills (Residence) (Class DF) visa if, at the time of application:

    1. (a)

      the person holds a visa:

      1. (i)

        of a subclass included in Business Skills (Provisional) (Class UR); and

      2. (ii)

        that was granted on the basis that the person was a member of the family unit of a holder of a visa of a subclass included in Business Skills (Provisional) (Class UR); and

    2. (b)

      the person is included in the application for the Business Skills (Residence) (Class DF) visa.

[2102]Subregulation 2.05 (6)

substitute

  1. (6)

    For subsection 41 (2A) of the Act, further circumstances in which the Minister may waive condition 8534 in relation to a visa are that the holder of the visa is a registered nurse, or satisfies the requirements for registration as a registered nurse, in Australia.

Note Regulation 2.07AH deals with applications for visas by persons for whom condition 8534 has been waived under subregulation 2.05 (6).

[2103]Subregulation 2.21A (2)

substitute

  1. (2)

    This regulation also applies to a person:

    1. (a)

      who is in Australia, but not in immigration clearance; and

    2. (b)

      whose application for an Aged Parent (Residence) (Class BP) visa was withdrawn:

      1. (i)

        while the person was in Australia; and

      2. (ii)

        at the same time as the person applied for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa; and

    3. (c)

      who was, immediately before that withdrawal, the holder of a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa that was granted in association with the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b); and

    4. (d)

      who does not hold a substantive visa; and

    5. (e)

      who has not already been granted a Subclass 010 (Bridging A) visa under this regulation in relation to:

      1. (i)

        the withdrawal of the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b); and

      2. (ii)

        the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b).

  2. (3)

    This regulation also applies to a person:

    1. (a)

      who is in Australia, but not in immigration clearance; and

    2. (b)

      whose application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa was withdrawn:

      1. (i)

        while the person was in Australia; and

      2. (ii)

        at the same time as the person applied for an Aged Parent (Residence) (Class BP) visa; and

    3. (c)

      who was, immediately before that withdrawal, the holder of a Subclass 010 (Bridging A) visa or a Subclass 020 (Bridging B) visa that was granted in association with the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b); and

    4. (d)

      who does not hold a substantive visa; and

    5. (e)

      who has not already been granted a Subclass 010 (Bridging A) visa under this regulation in relation to:

      1. (i)

        the withdrawal of the application for a Contributory Aged Parent (Residence) (Class DG) visa or a Contributory Aged Parent (Temporary) (Class UU) visa mentioned in paragraph (b); and

      2. (ii)

        the application for an Aged Parent (Residence) (Class BP) visa mentioned in paragraph (b).

  3. (4)

    Despite Schedule 1, the Minister must grant a Bridging A (Class WA) visa in relation to the person mentioned in subregulation (1), (2) or (3).

[2104]Regulation 3.03

substitute

3.03Evidence of identity and visa for persons entering Australia (Act s 166)

  1. (1)

    For paragraph 166 (1) (b) of the Act, the information required to be given to a clearance officer is that set out in regulation 3.02.

Note Under section 166, a person who enters Australia (other than a person referred to in sections 168 and 169 — broadly, persons who have left Australia only for short periods without going to a foreign country, persons in prescribed classes (see below) and allowed inhabitants of the Protected Zone) must give evidence of their identity and provide certain information, and must do so in a prescribed way.

  1. (2)

    For subsection 166 (2) of the Act, an Australian citizen who is required to comply with section 166 of the Act must give a clearance officer a completed passenger card.

  2. (3)

    For subsection 166 (2) of the Act, a non-citizen who is required to comply with section 166 of the Act must:

    1. (a)

      if the non-citizen is taken to hold a special purpose visa:

      1. (i)

        show a clearance officer evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

      2. (ii)

        give the clearance officer a completed passenger card where required by Part 1 of Schedule 9; and

    2. (b)

      if the non-citizen is eligible to hold a special category visa:

      1. (i)

        show a clearance officer a New Zealand passport that is in force; and

      2. (ii)

        give the clearance officer a completed passenger card; and

    3. (c)

      if the non-citizen has the right of permanent residence on Norfolk Island:

      1. (i)

        show a clearance officer a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; and

      2. (ii)

        give the clearance officer a completed passenger card; and

    4. (d)

      if the non-citizen holds an Electronic Travel Authority (Class UD) visa:

      1. (i)

        show a clearance officer evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

      2. (ii)

        give the clearance officer a completed passenger card; and

    5. (e)

      if the non-citizen is a person mentioned in paragraph 1223A (1) (c) of Schedule 1 who holds a Temporary Business Entry (Class UC) visa:

      1. (i)

        show a clearance officer evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

      2. (ii)

        give the clearance officer a completed passenger card; and

    6. (f)

      if the non-citizen holds a visa granted on the basis of an Internet application:

      1. (i)

        show a clearance officer evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

      2. (ii)

        give the clearance officer a completed passenger card; and

Note Internet application is defined in regulation 1.03.

  1. (g)

    if subregulation (5) applies to the non-citizen:

    1. (i)

      show a clearance officer evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

    2. (ii)

      give the clearance officer a completed passenger card.

  1. (4)

    For subsection 166 (2) of the Act, a non-citizen who is required to comply with section 166 of the Act, other than a non-citizen mentioned in subregulation (3), must:

    1. (a)

      show a clearance officer the person’s passport and evidence of a visa; and

    2. (b)

      give the clearance officer a completed passenger card.

  2. (5)

    This subregulation applies to a non-citizen who:

    1. (a)

      holds a Subclass 676 (Tourist (Short Stay)) visa; and

    2. (b)

      is included in a class of persons specified in a Gazette Notice for clause 676.712 of Schedule 2.

Part2Amendments of Schedule 1

[2201]Subparagraph 1205 (2) (a) (iv)

substitute

  1. (iv)

    In the case of an applicant who:

    1. (A)

      applies outside Australia; and

    2. (B)

      is a member of a sporting body that comprises at least 10 other applicants:

A charge that is equal to $1 610 divided by the number of applicants included in that body.

  1. (iva)

    In the case of an applicant who:

    1. (A)

      is outside Australia at the time of application; and

    2. (B)

      is a member of an entertainment body that comprises at least 10 other applicants:

A charge that is equal to $1 610 divided by the number of applicants included in that body.

[2202]Subitem 1211 (3)

substitute

  1. (3)

    Other:

    1. (a)

      Application by the dependent child of a holder of a visa of Subclass 309, 310, 445, 820 or 826 may be made in or outside Australia, but not in immigration clearance.

    2. (aa)

      Applicant must be in Australia to make an application in Australia.

    3. (ab)

      Application by an applicant in Australia must be made by:

      1. (i)

        posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice for this subparagraph; or

      2. (ii)

        having the application delivered by a courier service to the address specified in a Gazette Notice for this subparagraph.

    4. (b)

      Application by a person claiming to be a dependent child of a person who is an applicant for an Extended Eligibility (Temporary) (Class TK) visa may be made at the same time and place as, and combined with, the application by that person.

[2203]Paragraph 1222 (3) (aa), including the note

substitute

  1. (aa)

    Despite regulation 2.10, an application made on form 157A by an applicant who is included in a class of persons specified in a Gazette Notice for this paragraph must be made by:

    1. (i)

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

    2. (ii)

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

Note An application made under paragraph (aa) is taken to have been made outside Australia — see subregulation 2.07AF (6).

[2204]Subitem 1301 (1)

after

47ES,

insert

47BT,

Part3Amendments of Schedule 2

[2301]Paragraph 010.211 (5) (a)

substitute

  1. (a)

    the applicant has made a valid application for:

    1. (i)

      a Spouse (Migrant) (Class BC) visa; or

    2. (ii)

      an Interdependency (Migrant) (Class BI) visa; or

    3. (iii)

      a Partner (Migrant) (Class BC) visa; or

    4. (iv)

      an Aged Parent (Residence) (Class BP) visa; or

    5. (v)

      a Contributory Aged Parent (Residence) (Class DG) visa; or

    6. (vi)

      a Contributory Aged Parent (Temporary) (Class UU) visa; and

[2302]Paragraph 010.211 (6) (a)

substitute

  1. (a)

    the applicant has made a valid application for:

    1. (i)

      a Spouse (Migrant) (Class BC) visa; or

    2. (ii)

      an Interdependency (Migrant) (Class BI) visa; or

    3. (iii)

      a Partner (Migrant) (Class BC) visa; or

    4. (iv)

      an Aged Parent (Residence) (Class BP) visa; or

    5. (v)

      a Contributory Aged Parent (Residence) (Class DG) visa; or

    6. (vi)

      a Contributory Aged Parent (Temporary) (Class UU) visa; and

[2303]Subclause 010.611 (3)

after

regulation 2.21A

insert

to a person mentioned in subregulation 2.21A (1)

[2304]Subparagraph 010.611 (4) (a) (ii)

substitute

  1. (ii)

    if the bridging visa is granted under regulation 2.21A to a person mentioned in subregulation 2.21A (2) or (3), or under regulation 2.21B — at the time of grant; or

[2305]Paragraph 050.512 (c)

omit

paragraph 050.511 (b).

insert

paragraph 050.511 (b), clause 050.513 or clause 050.513B.

[2306]Paragraph 050.513 (c)

substitute

  1. (c)

    if the holder withdraws his or her application for merits review — 28 days after that withdrawal.

[2307]Subparagraph 050.513A (b) (i)

substitute

  1. (i)

    7 working days after the holder is notified of the decision on the revocation application; or

[2308]Subparagraph 050.513A (b) (iii)

substitute

  1. (iii)

    if the holder withdraws his or her revocation application — 7 working days after that withdrawal; and

[2309]Paragraph 050.513B (a)

substitute

  1. (a)

    28 days after the holder is notified of the review decision; or

[2310]Paragraph 050.513B (c)

substitute

  1. (c)

    if the holder withdraws his or her application for merits review — 28 days after that withdrawal.

[2311]Paragraph 050.514 (c)

substitute

  1. (c)

    if the other person whose visa was cancelled withdraws his or her application for merits review — 28 days after that withdrawal.

[2312]Subparagraph 050.514AA (b) (i)

substitute

  1. (i)

    7 working days after the person whose visa was cancelled under section 137J of the Act is notified of the decision on the revocation application; or

[2313]Subparagraph 050.514AA (b) (iii)

substitute

  1. (iii)

    if the person whose visa was cancelled under section 137J of the Act withdraws his or her revocation application — 7 working days after that withdrawal; and

[2314]Paragraph 050.514AB (a)

substitute

  1. (a)

    28 days after the person whose visa was cancelled under section 137J of the Act is notified of the review decision; or

[2315]Paragraph 050.514AB (c)

substitute

  1. (c)

    if the person whose visa was cancelled under section 137J of the Act withdraws his or her application for merits review — 28 days after that withdrawal.

[2316]Subparagraph 420.222 (4) (a) (iii)

omit

Australia; or

insert

Australia; and

[2317]Subparagraph 420.222 (4) (a) (iv)

omit

[2318]Clause 420.313

omit

[2319]Clause 420.325A

substitute

420.325A If the applicant is in the migration zone, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

[2320]After clause 428.222

insert

428.222A If the religious organisation mentioned in clause 428.222 has entered into a written agreement with the Secretary relating to the sponsorship of applicants:

  1. (a)

    the agreement specifies the position which the applicant will occupy while in Australia; and

  2. (b)

    the Minister is satisfied that the applicant will occupy that position while in Australia.

[2321]Clause 457.322

substitute

457.322 If the application is made outside Australia separately from that of the primary applicant, the primary applicant is, or is expected soon to be, in Australia.

[2322]Clause 676.712

substitute

676.712 No evidence need be given if the holder is included in a class of persons specified in a Gazette Notice for this clause.

676.713 If evidence is given, to be given by visa label affixed to a valid passport.

[2323]Paragraph 785.225 (b)

omit

16 years of age

insert

11 years of age

[2324]Paragraph 786.223 (2) (a)

omit

16 years of age

insert

11 years of age

[2325]Paragraph 866.224 (b)

omit

16 years of age

insert

11 years of age

[2326]Division 890.1, note 3

substitute

Note 3 Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12 (1) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa.

Note 4 There are no interpretation provisions specific to this Part.

[2327]Clause 890.213

omit

main business, or main businesses together,

insert

main business in Australia, or main businesses in Australia together,

[2328]Clause 890.214

omit

main business or main businesses of the applicant,

insert

main business in Australia, or main businesses in Australia, of the applicant,

[2329]Clause 891.111, after note 2

insert

Note 3 Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12 (1) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa.

[2330]Division 892.1, note 3

substitute

Note 3 Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12 (1) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa.

Note 4 There are no interpretation provisions specific to this Part.

[2331]Paragraph 892.212 (a)

omit

main business or main businesses of the applicant,

insert

main business in Australia, or main businesses in Australia, of the applicant,

[2332]Clause 892.213

omit

main business, or main businesses together,

insert

main business in Australia, or main businesses in Australia together,

[2333]Clause 893.111, after note 2

insert

Note 3 Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12 (1) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa.

Part4Amendments of Schedule 8

[2401]Item 8205

omit

over 16

insert

at least 11 years of age

[2402]Subparagraph 8529 (b) (i)

omit

16 years of age

insert

11 years of age

Part5Amendment of Schedule 9

[2501]Part 1, after item 24

before the note, insert

 

25

Person who:

  1. (a)

    holds a Subclass 676 (Tourist (Short Stay)) visa; and

  2. (b)

    is included in a class of persons specified in a Gazette Notice for clause 676.712 of Schedule 2

Passport

Yes

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, 230, 299, 323, 347, 348 and 354; 2003 No. 57.

2. Notified in the Commonwealth of Australia Gazette on 22 May 2003.

 
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