Migration Amendment Regulations 2004 (No. 1) (Cth)

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Migration Amendment Regulations 2004 (No. 1)1

Statutory Rules 2004 No. 212

I, PHILIP MICHAEL JEFFERY, 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 19 February 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

Contents

1Name of Regulations

These Regulations are the Migration Amendment Regulations 2004 (No. 1).

2Commencement

These Regulations commence on 1 March 2004.

3Amendment of Migration Regulations 1994

Schedules 1, 2, 3 and 4 amend the Migration Regulations 1994.

4Transitional
  1. (1)

    The amendments made by items [1], [2] and [15] of Schedule 2 apply in relation to a person who:

    1. (a)

      makes an application for a visa on or after 1 March 2004; and

    2. (b)

      is outside Australia at the time of application; and

    3. (c)

      enters Australia on or after 1 March 2004.

  2. (2)

    The amendment made by Schedule 4 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 March 2004; or

    2. (b)

      made on or after 1 March 2004.

  3. (3)

    The amendments made by:

    1. (a)

      Schedule 1; and

    2. (b)

      items [3], [4], [5], [6], [7], [8], [9], [10], [11], [12], [13] and [14] of Schedule 2; and

    3. (c)

      Schedule 3;

apply in relation to an application for a visa made on or after 1 March 2004.

Schedule 1Amendment relating to Educational (Temporary) (Class TH) visas

(regulation 3)

  

[1]Schedule 1, subitem 1208 (2)

substitute

  1. (2)

    Visa application charge:

    1. (a)

      First instalment (payable at the time application is made):

      1. (i)

        In the case of an applicant who:

        1. (A)

          holds a valid diplomatic, official or service passport; and

        2. (B)

          holds a third person note of support for the application from the government or a government agency of the applicant’s home country; and

        3. (C)

          appears to the Minister, on the basis of the information contained in the application, to meet the requirements for the grant of a Subclass 415 visa: Nil

      2. (ii)

        In any other case: $165

    2. (b)

      Second instalment (payable before grant of visa): Nil.

Schedule 2Amendments relating to Subclass 422 (Medical Practitioner) visas

(regulation 3)

  

[1]Subparagraph 3.03 (3) (h) (ii)

omit

card.

insert

card; and

[2]After paragraph 3.03 (3) (h)

insert

  1. (i)

    if the non-citizen holds a Subclass 422 (Medical Practitioner) visa, and is the holder of a valid passport issued by a foreign country specified in a Gazette Notice for this paragraph:

    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.

[3]Schedule 1, paragraphs 1214AA (3) (a) and (b)

substitute

  1. (a)

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

[4]Schedule 2, Subdivision 422.21, note

substitute

Note If the applicant is outside Australia at time of application, there are no criteria to be satisfied at time of application.

[5]Schedule 2, clause 422.211

omit

application is made in the migration zone,

insert

applicant is in the migration zone at time of application,

[6]Schedule 2, clause 422.221

substitute

422.221 If:

  1. (a)

    the applicant was outside Australia at time of application; or

  2. (b)

    the applicant was in the migration zone at time of application and the applicant does not hold a Subclass 422 visa;

the applicant satisfies the criteria in clauses 422.222 to 422.227B.

[7]Schedule 2, clause 422.226

omit

application is made outside Australia

insert

applicant was outside Australia at time of application

[8]Schedule 2, clauses 422.227 and 422.228

substitute

422.227 If, at time of application, the applicant was 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.

422.227A If, at time of application, the applicant was in the migration zone and was also the holder of a student visa:

  1. (a)

    the applicant has successfully completed a course in Australia at diploma level (within the meaning of subregulation 2.26A (6)) or above; and

  2. (b)

    the Minister is satisfied that:

    1. (i)

      it has not been possible to find a person who is suitable for the position in which the applicant’s intended employer proposes to employ the applicant; or

    2. (ii)

      in the circumstances, the intended employer should not be required to seek a suitable employee in Australia; and

  3. (c)

    the applicant is sponsored by an intended employer that is able to establish that a person with those skills is not reasonably available in Australia; and

  4. (d)

    if the applicant is a private subsidised student:

    1. (i)

      the sponsor establishes a strong case on economic grounds for the grant of the visa; and

    2. (ii)

      the Minister is satisfied that it would not be detrimental to Australia’s policies in respect of overseas students to grant the visa.

422.227B If, at time of application, the applicant was in the migration zone and was also the holder of an Electronic Travel Authority (Class UD), Long Stay (Visitor) (Class TN), Short Stay (Visitor) (Class TR), Working Holiday (Temporary) (Class TZ) or Subclass 456 (Business (Short Stay)) visa:

  1. (a)

    the applicant is sponsored by the applicant’s intended employer; and

  2. (b)

    the Minister is satisfied that:

    1. (i)

      it has not been possible to find a person who is suitable for the position in which the applicant’s intended employer proposes to employ the applicant; or

    2. (ii)

      in the circumstances, the intended employer should not be required to seek a suitable employee in Australia.

422.228 If, at time of application, the applicant was in the migration zone and was also the holder of a Subclass 422 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the criteria for the grant of a Subclass 422 visa.

[9]Schedule 2, clause 422.312

substitute

422.312 If the applicant is outside Australia at time of application and the application is made separately from that of the member of the family unit who seeks to satisfy or has satisfied the primary criteria, that member of the family unit is, or is expected soon to be, in Australia.

[10]Schedule 2, clause 422.326

omit

application is made outside Australia

insert

applicant was outside Australia at time of application

[11]Schedule 2, clause 422.326A

omit

application is made in the migration zone,

insert

applicant was in the migration zone at time of application,

[12]Schedule 2, clause 422.411

omit

application is made in the migration zone,

insert

applicant was in the migration zone at time of application,

[13]Schedule 2, clause 422.412

omit

application is made outside Australia,

insert

applicant was outside Australia at time of application,

[14]Schedule 2, clause 422.612

after

8303,

insert

8403,

[15]Schedule 9, Part 1, after item 27

before the note, insert

28

Persons holding a Subclass 422 (Medical Practitioner) visa, and a valid passport issued by a foreign country specified in a Gazette Notice for this item.

Passport

Yes

Schedule 3Amendments relating to Subclass 459 (Sponsored Business Visitor (Short Stay)) visas and Subclass 679 (Sponsored Family Visitor (Short Stay)) visas

(regulation 3)

  

[1]Regulation 1.20L, heading

substitute

1.20LLimitation on approval of sponsorship — Subclass 679 (Sponsored Family Visitor (Short Stay)) visas

[2]Subregulation 1.20L (1)

omit

visa if:

insert

visa who appears to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa if:

[3]Schedule 1, subitem 1217A (1)

substitute

  1. (1)

    Form:

    1. (a)

      If the applicant is seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa: 1235 and 1238.

    2. (b)

      If the applicant is seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa: 48S.

[4]Schedule 1, paragraph 1217A (3) (a)

substitute

  1. (a)

    Application by a person seeking to satisfy the criteria for the grant of a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa:

    1. (i)

      must be made in Australia, but not in immigration clearance; and

    2. (ii)

      must be lodged by the person, agency, instrumentality or organisation mentioned in clause 459.214.

  2. (aa)

    Application by a person seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa must be made outside Australia.

[5]Schedule 2, paragraph 459.214 (b)

omit

instrumentality.

insert

instrumentality; or

[6]Schedule 2, after paragraph 459.214 (b)

insert

  1. (c)

    an organisation specified in a Gazette Notice for this paragraph.

Schedule 4Amendment relating to Subclass 573 (Higher Education Sector) visas

(regulation 3)

[1]Schedule 5A, Part 5, Division 2, sub-subparagraphs 5A504 (1) (e) (ii) (E) and (F)

substitute

  1. (E)

    the Republic of Ireland;

  2. (F)

    the United Kingdom;

  3. (G)

    the United States of America.

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; Act No. 5, 2003; Statutory Rules 2003 Nos. 57, 94, 106, 122, 154, 224 (disallowed by the Senate on 9 October 2003), 239, 283 (disallowed by the Senate on 24 November 2003), 296 (as amended by 2003 No. 363), 362 and 363.

2. Notified in the Commonwealth of Australia Gazette on 26 February 2004.

 
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