Migration Amendment Regulations 2004 (No. 3) (Cth)
Migration Amendment Regulations 2004 (No. 3) 1
Statutory Rules 2004 No. 131 2
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 10 June 2004
P. M. JEFFERY
Governor-General
By His Excellency’s Command
AMANDA VANSTONE
Minister for Immigration and Multicultural and Indigenous Affairs
These Regulations are the
Migration Amendment Regulations 2004 (No. 3) .
These Regulations commence on 1 July 2004.
(1) Schedules 1 and 4 amend the
Migration Regulations 1994 .(2) Schedule 2 amends the
Migration Regulations 1994 , as amended by Schedule 1.(3) Schedule 3 amends the
Migration Regulations 1994 , as amended by Schedules 1 and 2.
(1) The amendments made by:
(a) Schedule 1; and
(b) items [5], [7] and [8] of Schedule 2; and
(c) items [1] and [3] of Schedule 4;
apply in relation to an application for a visa made on or after 1 July 2004.
(2) The following amendments apply in relation to an application for approval as an approved professional development sponsor made on or after 1 July 2004:
(a) the amendments made by items [1] and [2] of Schedule 2;
(b) the amendment of paragraph 4.02 (4) (g) of the
Migration Regulations 1994 made by item [3] of Schedule 2.(3) The amendment of paragraph 4.02 (4) (h) of the
Migration Regulations 1994 made by item [3] of Schedule 2, and the amendment of paragraph 4.02 (5) (g) of theMigration Regulations 1994 made by item [4] of Schedule 2, apply in relation to an application for approval as an approved professional development sponsor:
(a) made on or after 1 July 2004; and
(b) approved on or after 1 July 2004.
(4) The amendment made by item [6] of Schedule 2 applies in relation to an application for a visa made on or after 1 July 2004, if:
(a) the applicant is sponsored by a sponsor who applied for approval as an approved professional development sponsor on or after 1 July 2004; and
(b) the sponsor’s application for approval as an approved professional development sponsor was approved on or after 1 July 2004.
(5) Despite items [1], [2], [3] and [4] of Schedule 2 and item [17] of Schedule 3:
(a) Division 1.4C of the
Migration Regulations 1994 ; and(b) paragraphs 4.02 (4) (g), (h) and (i) and 4.02 (5) (g) of the
Migration Regulations 1994 ;as in force immediately before 1 July 2004, continue to apply in relation to:
(c) an application for approval as a professional development sponsor made before 1 July 2004; and
(d) an organisation that applied for approval as a professional development sponsor before 1 July 2004, and whose application for approval as a professional development sponsor was approved.
(6) The amendments made by Schedule 3 apply in relation to each of the following:
(a) an application for approval as a sponsor made on or after 1 July 2004;
(b) the nomination of an activity, to be undertaken in Australia by the prospective holder of a Subclass 457 (Business (Long Stay)) visa, made on or after 1 July 2004;
(c) an application for a visa made on or after 1 July 2004.
(7) The amendment made by item [2] of Schedule 4 applies 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 July 2004; or(b) made on or after 1 July 2004.
(subregulation 3 (1))
[ 1 ] After subregulation 1.12 (7), including the note
insert
(8) In addition to subregulation (1), a person is a member of the family unit of:
(a) an applicant for an Employer Nomination (Residence) (Class BW) visa who seeks to satisfy the criteria for the grant of a Subclass 857 (Regional Sponsored Migration Scheme) visa; or
(b) an applicant for a Business Skills (Residence) (Class DF) visa who seeks to satisfy the criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa; or
(c) an applicant for a Skilled Independent (Migrant) (Class BN) visa who seeks to satisfy the criteria for the grant of a Subclass 137 (Skilled — State/Territory-nominated Independent) visa;
if, at time of application:
(d) either:
(i) the person is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(ii) the last substantive visa held by the person:
(A) since entering Australia; and
(B) within the period of 28 days before the application was made;
was a Skilled — Independent Regional (Provisional) (Class UX) visa; and
(e) the Skilled — Independent Regional (Provisional) (Class UX) visa was granted on the basis that the person was a member of the family unit of the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, granted on the basis that the holder satisfied the primary criteria; and
(f) the person is included in the application for an Employer Nomination (Residence) (Class BW), Business Skills (Residence) (Class DF) or Skilled Independent (Migrant) (Class BN) visa.
omit (Class UR).
insert (Class UR);
insert
(g) Skilled — Independent Regional (Provisional) (Class UX);
omit visa; and
insert visa; or
insert
(ix) a Skilled — Independent Regional (Provisional) (Class UX) visa; and
insert
2.08DA Certain applicants for Skilled — Independent (Migrant) (Class BN) visas may make further application
(1) This regulation applies to a person if:
(a) the person applied for a Skilled — Independent (Migrant) (Class BN) visa; and
(b) the Minister made an assessment under subsection 93 (1) of the Act for that application; and
(c) the person was given an assessed score that is more than or equal to the applicable pool mark at the time when the score was assessed; and
(d) the Minister is satisfied that, on the basis of information available to the Minister, if the person had applied for a Skilled — Independent Regional (Provisional) (Class UX) visa, it is likely that the visa would have been granted.
(2) The Minister may, in writing, invite the person to make an application (a
further application ) for a Skilled — Independent Regional (Provisional) (Class UX) visa.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act for the method.
(3) If the person is invited to make a further application, and wishes to make the application in response to the invitation, the application must be made not later than 6 months after the day when the invitation is received.
Note If the person does not make an application, in response to the invitation, within the 6 months, the person may still make an application for the visa. However, making an application within the 6 months has an effect on the amount of the visa application charge payable by the person.
substitute
2.26A Prescribed qualifications and number of points for skilled permanent visas and Skilled — Independent Regional (Provisional) (Class UX) visa
omit visa.
insert visa;
insert
(f) a Skilled — Independent Regional (Provisional) (Class UX) visa.
omit visa; and
insert visa; or
insert
(v) a Subclass 495 (Skilled — Independent Regional (Provisional)) visa; and
omit visa; and
insert visa; or
insert
(vi) a Skilled — Independent Regional (Provisional) (Class UX) visa; and
substitute
(a) First instalment (payable at the time application is made):
(i) In the case of an applicant who is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa: $165.
(ii) In any other case: $1 000.
[ 15 ] Schedule 1, sub-subparagraph 1104B (2) (b) (i) (D)
omit (Class UR): $2 485
insert (Class UR); and
[ 16 ] Schedule 1, after sub-subparagraph 1104B (2) (b) (i) (D)
insert
(E) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa: $2 485
substitute
(f) For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa:
(i) applicant must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or former spouse of the applicant, satisfied the primary criteria for the grant of the visa; or
(ii) applicant must hold a Subclass 457 (Business (Long Stay)) visa, granted on the basis that the applicant, or the spouse or former spouse of the applicant, satisfied the criteria in subclause 457.223 (7) or (7A) for the grant of the visa; or
(iii) applicant:
(A) must hold a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(B) must have held a Skilled — Independent Regional (Provisional) (Class UX) visa at any time in the 28 days immediately before making the application.
insert
(j) If the applicant:
(i) is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; and
(ii) seeks to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa;
the applicant must have held the Skilled — Independent Regional (Provisional) (Class UX) visa for at least 2 years.
substitute
(ii) In the case of an applicant who is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa: $165.
(iii) In any other case: $1 795.
[ 20 ] Schedule 1, after sub-subparagraph 1114A (2) (b) (i) (A)
insert
(AA) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; and
[ 21 ] Schedule 1, after sub-subparagraph 1114A (2) (b) (ii) (A)
insert
(AA) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; and
insert
(ba) If the applicant:
(i) is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis that the applicant satisfied the primary criteria for the visa; and
(ii) seeks to satisfy the primary criteria for the grant of a Subclass 856 (Employer Nomination Scheme) or a Subclass 857 (Regional Sponsored Migration Scheme) visa;
the applicant has held the Skilled — Independent Regional (Provisional) (Class UX) visa for at least 2 years.
substitute
(ii) In the case of an applicant who is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa: $165.
(iii) In any other case: $1 795.
omit application and who is assessed as not having functional English:
insert application, who is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa and who is assessed as not having functional English:
insert
(d) If:
(i) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis that the holder satisfied the primary criteria; or
(ii) the last substantive visa held by the applicant was a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis that the holder satisfied the primary criteria;
the applicant must have held the Skilled — Independent Regional (Provisional) (Class UX) visa for at least 2 years.
omit or Skilled — Australian-sponsored Overseas Student (Class DE)
insert , Skilled — Australian-sponsored Overseas Student (Class DE) or Skilled — Independent Regional (Provisional) (Class UX)
insert
(g) If:
(i) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis that the holder satisfied the primary criteria; or
(ii) the last substantive visa held by the applicant was a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis that the holder satisfied the primary criteria;
the applicant must have held the Skilled — Independent Regional (Provisional) (Class UX) visa for at least 2 years.
insert
1218A. Skilled — Independent Regional (Provisional) (Class UX)
(1) Form: 47SK.
(2) Visa application charge:
(a) First instalment (payable at the time application is made):
(i) in the case of an applicant for a Skilled — Independent (Migrant) (Class BN) visa who has a written invitation from the Minister under regulation 2.08DA to apply for a Skilled — Independent Regional (Provisional) (Class UX) visa, and has applied for the visa in accordance with that regulation: $165
(ii) in the case of an applicant who is the holder of a Subclass 495 (Skilled — Independent Regional (Provisional)) visa: $165
(iii) in any other case: $1 795.
(b) Second instalment (payable before grant of visa):
(i) if the applicant:
(A) has turned 18; and
(B) is assessed as not having functional English; and
(C) has held a Skilled — Independent Regional (Provisional) (Class UX) visa; and
(D) has not paid a second instalment for the application for the visa mentioned in
sub-subparagraph (C): $2 560
(ii) if the applicant:
(A) has turned 18; and
(B) is assessed as not having functional English; and
(C) has not previously held a Skilled — Independent Regional (Provisional) (Class UX) visa: $2 560
(iii) in any other case: Nil.
(3) Other:
(a) Application must be made in Australia but not in immigration clearance.
(b) Application must be made by:
(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
(ii) having the application delivered by a courier service to the address specified in a Gazette Notice for this subparagraph.
(c) Subclause (4), (5) or (6) must be satisfied.
(d) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Skilled — Independent Regional (Provisional) (Class UX) visa may be made at the same time and place as, and combined with, the application by that person.
(e) Applicant who is a member of the family unit of an applicant who meets the requirements of subclause (5), and makes a combined application with that applicant must satisfy paragraphs (5) (a), (b), (c), (d), (e), (k) and (l).
(4) If the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa granted on the basis of satisfying the primary criteria, the applicant has never held another Skilled — Independent Regional (Provisional) (Class UX) visa.
(5) If the applicant is in Australia and seeks to be eligible for the grant of a Subclass 495 (Skilled — Independent Regional (Provisional)) visa while in Australia:
(a) The applicant must be:
(i) the holder of a Bridging A (Class WA) visa granted on the basis that the applicant met the requirements of subclause 010.211 (2) or (3) of Schedule 2 on the basis of a valid application for a visa other than a visa mentioned in paragraph (b); or
(ii) the holder of a Bridging B (Class WB) visa granted on the basis that the applicant met the requirements of subclause 020.212 (2) or (3) of Schedule 2 on the basis of a valid application for a visa other than a visa mentioned in paragraph (b); or
(iii) a person to whom paragraph (b) applies.
(b) This paragraph applies to an applicant who is the holder of a substantive visa other than:
(i) a Subclass 560 (Student) visa granted to:
(A) the applicant as a person who satisfied the primary criteria for that visa (the
primary person ) in relation to undertaking:
(I) a registered English language course or an ELICOS; or
(II) a course of study paid for wholly or in part by the Commonwealth, the government of a State or Territory, the government of a foreign country or a multilateral agency; or
(III) a full-time course of study or training under a scholarship scheme or training program approved by the AusAID Minister or the Defence Minister; or
(IV) a non-award course; or
(B) the applicant as a member of the family unit of the primary person; or
(ii) a Subclass 562 (Iranian Postgraduate Student), 563 (Iranian Postgraduate Student Dependant), 572 (Vocational Education and Training Sector), 573 (Higher Education Sector) or 574 (Postgraduate Research Sector) visa granted to:
(A) the applicant as a person who satisfied the primary criteria for the visa (the
primary person ) in relation to undertaking a course mentioned in sub-sub-subparagraph (i) (A) (II) or (III); or(B) the applicant as a member of the family unit of the primary person; or
(iii) a Subclass 570 (Independent ELICOS Sector) visa; or
(iv) a Subclass 571 (Schools Sector) visa; or
(v) a Subclass 575 (Non-Award Sector) visa; or
(vi) a Subclass 576 (AusAID or Defence Sector) visa.
(c) If the applicant is the holder of:
(i) a Bridging A (Class WA) visa or Bridging B (Class WB) visa; or
(ii) a substantive visa that is not a Subclass 560, 562, 563, 572, 573 or 574 visa of the kind required in paragraph (b);
the applicant:
(iii) must be the holder of a Subclass 497 (Graduate — Skilled) visa; or
(iv) must have been, at some time in the 6 months immediately before making the application, the holder of a Subclass 560, 562, 563, 572, 573 or 574 visa of the kind required in paragraph (b).
(d) Applicant must not have been an unlawful non-citizen at any time in the 6 months immediately before making the application.
(e) Application must be accompanied by evidence that:
(i) the applicant has undergone a medical examination, for the purpose of the application, carried out by any of the following:
(A) a Medical Officer of the Commonwealth;
(B) a medical practitioner approved by the Minister for this sub-subparagraph;
(C) a medical practitioner employed by an organisation approved by the Minister for this sub-subparagraph; and
(ii) for an applicant who is at least 16 years old — an Australian Federal Police check has been sought by the applicant.
(f) Applicant seeking to satisfy the primary criteria:
(i) must:
(A) be less than 45 years old; or
(B) if the applicant has a written invitation from the Minister under regulation 2.08DA, and has applied for the visa in accordance with that regulation — was less than 45 years old when the application for a Skilled — Independent (Migrant) (Class BN) visa was made; and
(ii) must nominate in his or her application a skilled occupation.
(g) Applicant seeking to satisfy the primary criteria must, in his or her application:
(i) if the applicant has, in the 6 months immediately before the day when the application is made, completed a doctoral degree, in which all instruction was conducted in English, for award by an Australian educational institution as the result of at least 2 years of full-time study in Australia at that institution — nominate a skilled occupation for which at least 50 points are specified by Gazette Notice as available; or
(ii) if the applicant meets the requirements of Part 10 of Schedule 6A to these Regulations — nominate a skilled occupation for which at least 50 points are specified by Gazette Notice as available; or
(iii) in any other case — nominate a skilled occupation for which 60 points are specified by Gazette Notice as available.
(h) Application by the applicant seeking to satisfy the primary criteria must be accompanied by evidence that:
(i) each of the following applies:
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia;
(B) all instruction for that degree, diploma or trade qualification was conducted in English; or
(ii)
each of the following applies:
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of less than 2 years of full-time study at that institution while the applicant was present in Australia;
(B) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, while the applicant was present in Australia;
(C) the 2 or more degrees, diplomas or
trade qualifications mentioned in
sub-subparagraphs (A) and (B) were completed as a result of a total of at least 2 years of full-time study while the applicant was present in Australia;
(D) if 1 of the 2 or more degrees, diplomas
or trade qualifications mentioned in
sub-subparagraphs (A) and (B) is a doctoral degree — the doctoral degree was completed as a result of a total of at least 2 years of
full-time study while the applicant was present in Australia;
(E) each of the degrees, diplomas or
trade qualifications mentioned in
sub-subparagraphs (A) and (B) was completed at the institution at which it was commenced;
(F) all instruction for each of the degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) was conducted in English.
(i) Applicant seeking to satisfy the primary criteria must give, with his or her application, evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
(j) Applicant seeking to satisfy the primary criteria must be sponsored by a State or Territory government agency.
(k) If the applicant is, or was at any time, the holder of an AusAID student visa within the meaning of regulation 1.04A or of a Subclass 560, 562, 563, 570, 571, 572, 573, 574, 575 or 576 visa granted to the applicant for a course of study or training for which the applicant is or was provided financial support by the Commonwealth, the government of a State or Territory, the government of a foreign country or a multilateral agency:
(i) the course of study or training (whether or not the applicant has ceased the course) is one designed to be undertaken over a period of less than 12 months; or
(ii) the applicant:
(A) has ceased, completed, withdrawn from, or been excluded from:
(I) the course of study or training to which the visa relates or related; or
(II) another course approved by the AusAID Minister, or the government or multilateral agency that provided financial support to the applicant, as the case requires, in substitution for that course; and
(B) has spent at least 2 years outside Australia since ceasing or completing, or withdrawing or being excluded from, the course.
(l) An applicant who is, or was at any time, a member of the family unit of a person who was the holder of a visa of a kind mentioned in paragraph (k) must have spent at least 2 years outside Australia since that person ceased, completed, withdrew from or was excluded from the course of study or training to which the visa related.
(6) If the applicant does not meet the requirements of subclause (4) or (5):
(a) Applicant seeking to satisfy the primary criteria:
(i) must:
(A) be less than 45 years old; or
(B) if the applicant has a written invitation from the Minister under regulation 2.08DA, and has applied for the visa in accordance with that regulation — was less than 45 years old when the application for a Skilled — Independent (Migrant) (Class BN) visa was made; and
(ii) must nominate in his or her application a skilled occupation.
(b) Applicant seeking to satisfy the primary criteria must give, with his or her application, evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
(c) For an applicant who is at least 16 years old — application must be accompanied by evidence that an Australian Federal Police check has been sought by the applicant.
(d) Applicant seeking to satisfy the primary criteria must be sponsored by a State or Territory government agency.
(7) Subclasses:
495 (Skilled — Independent Regional (Provisional))
insert
136.214 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
insert
136.312 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
substitute
Note 2 Formember of the family unit , see regulation 1.12.
Note 3 Forvocational English , see regulation 1.15B.
substitute
137.211 If the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the applicant is less than 45 years of age.
substitute
137.213 If the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
substitute (1) Subject to subclause (2), if the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the applicant has been employed in a skilled occupation:
(c) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or
(d) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.
insert
137.215 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant must:
(c) for at least 2 years in total in the previous 3 years, have lived in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted; and
(d) for at least 1 year in total in the previous 3 years, have worked in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted.
137.216 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
[ 36 ] Schedule 2, clause 137.221, including the note
substitute
137.221 If the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the applicant has a score that is equal to, or more than, the pool mark when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
Note That Subdivision of the Act provides in sections 92 to 96 for the application of apoints system , under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 of Part 2 (see regulation 2.26A), and Schedule 6A, of these Regulations. Pool marks and pass marks are set from time to time by the Minister by notice in theGazette (Act, section 96).
substitute (1) If the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the applicant has been employed in a skilled occupation:
(c) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for at least 12 months in the 18 months immediately before the day when the application was made; or
(d) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for at least 24 months in the 36 months immediately before the day when the application was made.
substitute
137.222 If the applicant:
(a) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa; and
(b) is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, but is the spouse or former spouse of a person who is or was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa on the basis of satisfying the primary criteria for the grant of that visa;
the applicant has vocational English.
substitute
137.225 The applicant satisfies:
(a) if the applicant was, at the time of application, the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(b) in any other case — public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
substitute
(a) either:
(i) if the member was, at the time of application, the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(ii) in any other case — satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010; and
omit satisfies
insert if, at the time of application, the member of the family unit was not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — satisfies
omit criterion.
insert criterion; and
insert
(c) if, at the time of application, the member of the family unit was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — 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.
insert
137.312 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
substitute
137.322 The applicant satisfies:
(a) if the applicant was, at the time of application, the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(b) in any other case — public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
substitute
137.411 If the applicant:
(a) was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application; or
(b) is a member of the family unit of an applicant who was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application;
the applicant may be in Australia (but not in immigration clearance) or outside Australia when the visa is granted.
137.412 In any other case, the applicant must be outside Australia at the time of grant.
insert
Subclass 495 Skilled — Independent Regional (Provisional)
495.111 In this Part:
completed includes having met the requirements for award of a degree, diploma or trade qualification.
degree anddiploma have the meanings given in subregulation 2.26A (6).
employed has the meaning given in subregulation 2.26A (7).
trade qualification has the meaning given in subregulation 2.26A (6).
vocational English has the meaning given in regulation 1.15B.
Note Forskilled occupation , see regulation 1.03.
Note The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this Subclass need satisfy only the secondary criteria.
495.21 Criteria to be satisfied at time of application 495.211 (1) Subject to subclause (2), the applicant has been employed in a skilled occupation:
(a) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day when the application was made; or
(b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application — for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day when the application was made.
(2) Subclause (1) does not apply to an applicant if:
(a) each of the following subparagraphs applies in relation to the applicant:
(i) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia;
(ii) the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application;
(iii) all instruction for that degree, diploma or trade qualification was conducted in English; or
(b) each of the following subparagraphs applies in relation to the applicant:
(i) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of less than 2 years of full-time study at that institution while the applicant was present in Australia;
(ii) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, while the applicant was present in Australia;
(iii) the 2 or more degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) were completed as a result of a total of at least 2 years of full-time study while the applicant was present in Australia;
(iv) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was completed at the institution at which it was commenced;
(v) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) is relevant to the skilled occupation nominated by the applicant in his or her application;
(vi) all instruction for each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was conducted in English.
495.212 In determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held a substantive visa authorising him or her to work during that period and complied with the conditions to which that visa is or was subject; or
(b) held a Subclass 010 (Bridging A) or Subclass 020 (Bridging B) visa permitting him or her to work during that period and complied with the conditions to which that visa is or was subject.
495.213 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
495.22 Criteria to be satisfied at time of decision
495.221 If regulation 2.27B applies:
(a) the applicant provides, for the application, the assessment of his or her skills mentioned in subregulation 2.27B (4); and
(b) the skills of the applicant for the skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
495.222 The applicant has the qualifying score when assessed for the visa under Subdivision B of Division 3 of Part 2 of the Act.
Note That Subdivision of the Act provides in sections 92 to 96 for the application of apoints system , under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 of Part 2 (see regulation 2.26A), and Schedule 6A, of these Regulations. Pool marks and pass marks are set from time to time by the Minister by notice in theGazette (Act, section 96).
495.223 The applicant has vocational English.
495.224 Both of the following apply:
(a) no evidence has become available since the time of application that the information given or used as part of the assessment mentioned in paragraphs 1218A (5) (i) and 1218A (6) (b) of Schedule 1 is false or misleading in a material particular;
(b) no evidence has become available since the time of application that the information given to satisfy clause 495.211 of Schedule 2 is false or misleading in a material particular.
495.225 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005 and 4010.
495.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010.
495.227 (1) The applicant is sponsored by a State or Territory government agency, the sponsorship has been accepted by the Minister, and the sponsorship is still in force.
(2) A sponsorship under subclause (1) must be:
(a) made on form 1244; and
(b) lodged at the office of Immigration where the application was made.
495.228 If the Minister has requested an assurance of support in relation to the applicant, the Minister is satisfied that the assurance has been accepted by the Secretary of the Department of Family and Community Services.
495.229 Each member of the family unit of the applicant who is an applicant for a Subclass 495 visa is a person who:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005 and 4010; and
(b) if he or she has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.
495.230 If a person (the
(a) is a member of the family unit of the applicant; and
(b) has not turned 18; and
(c) made a combined application with the applicant;
public interest criteria 4015 and 4016 are satisfied for the additional applicant.
495.231 Grant of the visa would not result in either:
(a) the number of Subclass 495 visas granted in a financial year exceeding the maximum number of Subclass 495 visas, as determined by Gazette Notice, that may be granted in that financial year; or
(b) the number of visas of particular classes (including Subclass 495) granted in a financial year exceeding the maximum number of visas of those classes, as determined by Gazette Notice, that may be granted in that financial year.
Note These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.
495.31 Criteria to be satisfied at time of application 495.311 The applicant is a member of the family unit of a person who satisfies the primary criteria in Subdivision 495.21.
495.312 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
495.32 Criteria to be satisfied at time of decision 495.321 The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 495 visa.
495.322 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005 and 4010.
495.323 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002 and 5010.
495.324 If the Minister has requested an assurance of support in relation to the person who satisfies the primary criteria, the Minister is satisfied that:
(a) the applicant is included in the assurance of support given in relation to that person, and that assurance has been accepted by the Secretary of the Department of Family and Community Services; or
(b) an assurance of support in relation to the applicant has been accepted by the Secretary of the Department of Family and Community Services.
495.325 If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied for the applicant.
495.411 If the applicant:
(a) satisfies subclause (4) or (5) of item 1218A of Schedule 1; or
(b) is a member of the family unit of a person who satisfies subclause (4) or (5) of item 1218A, and made a combined application with that person;
the applicant may be in Australia (but not in immigration clearance) or outside Australia when the visa is granted.
495.412 In any other case, the applicant must be outside Australia when the visa is granted.
495.511 Temporary visa permitting the holder to travel to, enter and remain in Australia until a date specified by the Minister.
495.611 If the applicant is outside Australia at time of grant, first entry must be made before a date specified by the Minister for the purpose.
495.612 If the applicant satisfies the secondary criteria, either or both of conditions 8502 and 8514 may be imposed.
495.613 Condition 8515 may be imposed.
495.614 Condition 8539 must be imposed.
495.711 Visa label affixed to a valid passport.
omit or Skilled — Australian-sponsored Overseas Student (Class DE)
insert , Skilled — Australian-sponsored Overseas Student (Class DE) or Skilled — Independent Regional (Provisional) (Class UX)
insert
820.212 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
insert
820.313 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
insert
826.213 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
insert
826.313 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
[ 53 ] Schedule 2, subparagraph 857.212 (4) (a) (viii)
omit (Class TW); or
insert (Class TW);
[ 54 ] Schedule 2, after subparagraph 857.212 (4) (a) (viii)
insert
(ix) Skilled — Independent Regional (Provisional) (Class UX); or
insert
857.215 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was, a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant must:
(c) for at least 2 years in total in the previous 3 years, have lived in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted; and
(d) for at least 1 year in total in the previous 3 years, have worked in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted.
857.216 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
substitute
857.223 The applicant satisfies:
(a) if the applicant was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application — public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(b) in any other case — public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
substitute (1) Each member of the family unit of the applicant who is an applicant for a Subclass 857 visa:
(a) if the member was at the time of application the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(b) in any other case — is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
substitute
(b) either:
(i) if the member was at the time of application the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa — 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; or
(ii) in any other case — 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.
insert
857.314 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
substitute
857.322 The applicant satisfies:
(a) if the applicant was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application — public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4010; or
(b) in any other case — public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.
substitute
857.411 If the applicant:
(a) was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application; or
(b) is a member of the family unit of a person who was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa by reason of satisfying the primary criteria for the grant of the visa at the time of application;
the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.
857.412 In any other case, the applicant must be in Australia, but not in immigration clearance, when the visa is granted.
omit The
insert If the applicant is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, the
insert
892.216 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant must:
(c) for at least 2 years in total in the previous 3 years, have lived in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted; and
(d) for at least 1 year in total in the previous 3 years, have worked in a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when that visa was granted.
892.217 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
omit visa;
insert visa; or
insert
(c) a Skilled — Independent Regional (Provisional) (Class UX) visa;
omit visa;
insert visa; or
insert
(c) a Skilled — Independent Regional (Provisional) (Class UX) visa;
insert
892.312 If:
(a) the applicant is the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(b) the last substantive visa held by the applicant since last entering Australia was a Skilled — Independent Regional (Provisional) (Class UX) visa;
the applicant has complied with the conditions of that visa.
omit visa;
insert visa; or
insert
(c) a Skilled — Independent Regional (Provisional) (Class UX) visa;
omit visa;
insert visa; or
insert
(c) a Skilled — Independent Regional (Provisional) (Class UX) visa;
[ 73 ] Schedule 2, clause 892.411, including the note
substitute
892.411 If the applicant:
(a) was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa at the time of application; or
(b) is a member of the family unit of a person who was the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa by reason of satisfying the primary criteria for the grant of the visa at the time of application;
the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.
892.412 If clause 892.411 does not apply:
(a) if the applicant satisfies the primary criteria, the applicant must be inside Australia, but not in immigration clearance, when the visa is granted; and
(b) if the applicant satisfies the secondary criteria, the applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted.
Note The second instalment of the visa application charge must be paid before the visa can be granted.
omit 15
insert 20
omit 10
insert 15
insert
8539 While the holder is in Australia, the holder must not live, study or work outside a part of Australia the postcode of which was specified in the Gazette Notice for item 6A1001 of Schedule 6A, as the notice was in force when the condition was imposed.
(subregulation 3 (2))
[ 1 ] Regulation 1.03, definition of approved professional development sponsor
substitute
approved professional development sponsor means an organisation that has been approved as a professional development sponsor under subsection 140E (1) of the Act and on the terms specified in regulation 1.20O.
substitute
Division 1.4C Sponsorship: professional development
1.20LA Application of Division 3A of Part 2 of the Act For section 140A of the Act, Division 3A of Part 2 of the Act applies to a Subclass 470 (Professional Development) visa.
In this Division:
employed , in relation to an overseas employer, includes being nominated in the circumstances described in sub-subparagraph (a) (ii) (B) or (b) (ii) (B) of the definition ofoverseas employer .
organisation :
(a) for an applicant for approval as an approved professional development sponsor:
(i) means a body that is lawfully established and actively operating in Australia (including an unincorporated body of persons); and
(ii) does not include an individual or a sole trader; and
(b) in any other case:
(i) means a body (including an unincorporated body of persons); and
(ii) does not include an individual or a sole trader.
overseas agreement means an agreement:
(a) entered into between:
(i) an organisation that proposes to be an approved professional development sponsor; and
(ii) the overseas employer of a person who would be an overseas participant; and
(b) that specifies the financial arrangements between the parties, including, as a minimum requirement, a provision that the overseas employer will meet all costs relating to:
(i) the overseas participant’s travel and entry to Australia; and
(ii) tuition for the professional development program; and
(iii) the overseas participant’s accommodation in Australia; and
(iv) the overseas participant’s living expenses in Australia; and
(v) the overseas participant’s health insurance in Australia; and
(vi) the overseas participant’s return travel from Australia; and
(c) that includes:
(i) a description of the professional development program and what is intended to be provided by the approved professional development sponsor; and
(ii) a description of the roles of each of the parties under the agreement; and
(iii) the duration of the agreement; and
(iv) arrangements for mediation of disputes and other conflict resolution arrangements; and
(v) any arrangements made by the approved professional development sponsor to subcontract any part of the provision of the professional development program; and
(vi) a description of the arrangements for insurance relating to the approved professional development sponsor; and
(vii) a description of the arrangements for recovery of costs if the approved professional development sponsor, or another provider of the professional development program acting for the approved professional development sponsor, ceases operations for any reason; and
(viii) a description of the characteristics of the persons whom the overseas employer proposes to select as overseas participants, and how overseas participants will be selected; and
(d) that is signed and dated by representatives of each party who are authorised to sign the agreement.
overseas employer , in relation to a person who applies, or proposes to apply, for a Sponsored Training (Temporary) (Class UV) visa, means:
(a) an organisation:
(i) the activities of which are conducted under the auspices of the government of:
(A) a foreign country; or
(B) a province, territory or state of a foreign country; and
(ii) that:
(A) employs the person; or
(B) has nominated the person to undertake a genuine training program the costs of which are met wholly by the organisation; or
(b) a multilateral agency that:
(i) is actively operating, and has been actively operating for a continuous period of at least 1 year immediately before the date of application; and
(ii) either:
(A) employs the person; or
(B) has nominated the person to undertake a genuine training program the costs of which are wholly met by the agency; or
(c) a registered business that:
(i) is conducted outside Australia by an organisation; and
(ii) is actively and lawfully operating outside Australia, and has been actively operating outside Australia for a continuous period of at least 1 year immediately before the date of application; and
(iii) employs the person.
overseas participant , in relation to an approved professional development sponsor, means:
(a) a person who holds a Subclass 470 (Professional Development) visa; or
(b) a person:
(i) who is in Australia; and
(ii) who does not hold a substantive visa; and
(iii) whose last substantive visa was a Subclass 470 (Professional Development) visa.
Subdivision 1.4C.2 Becoming an approved professional development sponsor
1.20N Process for making application to become an approved professional development sponsor
(1) For subsection 140F (1) of the Act, an organisation may apply to the Minister for approval as an approved professional development sponsor.
(2) An application must be made in accordance with approved form 1226.
(3) An application must be accompanied by a fee of $1 000.
(4) An application must be made by:
(a) posting the application (with the correct pre-paid postage) to the post office box address specified in a Gazette Notice for this paragraph; or
(b) having the application delivered by a courier service to the address specified in a Gazette Notice for this paragraph; or
(c) having the application sent by facsimile to the address specified in a Gazette Notice for this paragraph.
Note In prescribed circumstances, a sponsor may be barred from making future applications for approval as a professional development sponsor (see paragraphs 140L (e) and (f) of the Act).
1.20NA Approving an application to become an approved professional development sponsor
(1) For section 140E of the Act, the criteria for approval of an organisation as an approved professional development sponsor are that the Minister:
(a) is satisfied about each of the matters mentioned in subregulation (2); and
(b) is satisfied that if an authorised officer requires security for compliance with:
(i) the provisions of the Act and these Regulations in relation to the applicant’s undertakings as an approved professional development sponsor; or
(ii) a condition imposed under the Act or these Regulations in relation to the applicant’s undertakings as an approved professional development sponsor;
the applicant has given the security.
Note Under section 140E of the Act, the Minister must approve an applicant as an approved professional development sponsor if the prescribed criteria are satisfied.
(2) For paragraph (1) (a), the matters are:
(a) the applicant is offering to conduct a professional development program that complies with the following requirements:
(i) the program is relevant to, and consistent with, the development of the skills of managers, professionals, or both;
(ii) the program provides skills and experience relevant to, and consistent with, the business and business background of an overseas participant’s overseas employer;
(iii) the duration of the program does not exceed:
(A) 12 months; or
(B) if the Secretary is satisfied that exceptional circumstances exist — a longer period approved by the Secretary;
(iv) the primary form of the program is the provision of face to face teaching in a classroom or similar environment;
(v) the primary content of the program is not a practical component;
(vi) any practical component of the program:
(A) does not exceed 7 hours in any day and 35 hours in any week; and
(B) does not adversely affect the Australian labour market; and
(C) requires or involves the payment of remuneration to an overseas participant only by the overseas participant’s overseas employer; and
(b) the applicant has demonstrated overall the capacity to provide professional development programs involving overseas participants; and
(c) the applicant has entered into an overseas agreement with the overseas employer; and
(d) the applicant:
(i) is not a proscribed person or entity within the meaning of section 14 of the
Charter of the United Nations Act 1945 ; and(ii) is not a terrorist organisation, or a member of a terrorist organisation, within the meaning of Division 102 of the
Criminal Code ; and(iii) does not intentionally provide support to:
(A) a proscribed person or entity within the meaning of section 14 of the
Charter of the United Nations Act 1945 ; or(B) an organisation which the person knows to be a terrorist organisation, or a member of a terrorist organisation, within the meaning of Division 102 of the
Criminal Code ; and(e) if the applicant has previously been required to comply with the immigration laws of Australia — the applicant has a satisfactory record of compliance; and
(f) if a person associated with the applicant has previously been required to comply with the immigration laws of Australia — the person has a satisfactory record of compliance; and
(g) if an overseas employer with which the applicant has a current overseas agreement has previously been required to comply with the immigration laws of Australia — the employer has a satisfactory record of compliance; and
(h) each person who is, or was, an overseas participant in a professional development program conducted by or for the applicant has:
(i) a satisfactory record of compliance with the person’s visa conditions; and
(ii) a satisfactory record of compliance with the immigration laws of Australia in relation to any previous application by the person for a visa; and
(i) each overseas employer with which the applicant has a current agreement mentioned in paragraph (c):
(i) is not a proscribed person or entity within the meaning of section 14 of the
Charter of the United Nations Act 1945 ; and(ii) is not a terrorist organisation, or a member of a terrorist organisation, within the meaning of Division 102 of the
Criminal Code ; and(iii) does not intentionally provide support to:
(A) a proscribed person or entity within the meaning of section 14 of the
Charter of the United Nations Act 1945 ; or(B) an organisation which the person knows to be a terrorist organisation, or a member of a terrorist organisation, within the meaning of Division 102 of the
Criminal Code ; and(j) the applicant has given the undertakings mentioned in regulation 1.20P; and
Note The undertakings do not have effect in relation to an overseas participant until a visa is granted to the overseas participant (see subsection 140H (3) of the Act).
(k) the applicant is capable of complying with the undertakings mentioned in regulation 1.20P; and
(l) the applicant does not owe costs for medical or hospital expenses (not covered by health insurance) incurred in relation to an overseas participant; and
(m) the applicant does not have any outstanding debts to the Commonwealth incurred in relation to an overseas participant.
(3) As soon as practicable after deciding an application by an organisation for approval as an approved professional development sponsor, the Minister must give the applicant:
(a) a copy of the written approval or refusal of the application; and
(b) if the application is refused, a statement of the reasons for the refusal.
Note Under section 140E of the Act, the Minister must approve a person as an approved professional development sponsor if the criteria set out in regulation 1.20NA are satisfied.
1.20O Terms of approval as approved professional development sponsor
(1) For subsection 140G (2) of the Act, an approval as an approved professional development sponsor has effect only in relation to:
(a) the professional development program specified in the application for approval; and
(b) the overseas agreement or agreements specified in the application for approval; and
(c) the overseas employer or overseas employers specified in the application for approval.
Note If an organisation wishes:(a) to prepare a new professional development program; or
(b) to make a new agreement with an existing overseas employer for the provision of a professional development program; or
(c) to offer an existing professional development program to a new overseas employer;
the organisation must apply under regulation 1.20N for a new approval as an approved professional development sponsor in relation to the new arrangement.
(2) For subsection 140G (2) of the Act, approval of an organisation as an approved professional development sponsor ceases to have effect on the earliest of:
(a) the end of 3 years commencing on the day on which the approval is given; and
(b) the ending of:
(i) the overseas agreement specified in the application for approval; or
(ii) if more than 1 agreement is specified in the application for approval — the specified agreement that ends first; and
(c) cancellation of the approval as mentioned in paragraph 140L (a) or (b) of the Act.
(1) For subsection 140H (1) of the Act, the undertakings that an applicant for approval as an approved professional development sponsor must make are:
(a) to ensure the cost of return travel by an overseas participant from Australia, while the overseas participant is the holder of a Subclass 470 (Professional Development) visa is met; and
(b) to ensure that an overseas participant complies with the conditions to which the overseas participant’s visa is subject; and
(c) to ensure that an overseas participant complies with the immigration laws of Australia; and
(d) to comply with its responsibilities under the immigration laws of Australia; and
(e) to ensure that an overseas participant’s standard of living (including the overseas participant’s accommodation) while the overseas participant is the holder of a Subclass 470 (Professional Development) visa is consistent with a reasonable standard of living in Australia; and
(f) to give the Secretary accurate information, as soon as practicable, about:
(i) any material change in the approved professional development sponsor’s circumstances; or
(ii) any matter that may affect the approved professional development sponsor’s ability to carry out the undertakings mentioned in this regulation; or
(iii) any material change in an overseas participant’s circumstances; or
(iv) any matter that may affect an overseas participant’s ability to comply with the conditions to which the overseas participant’s visa is subject; and
(g) not to make a material change to the professional development program for an overseas participant unless the Secretary has approved the change in writing; and
(h) to give officers reasonable access, at reasonable times, to premises at which the approved professional development sponsor provides, or will provide, a professional development program, for the purpose of assessing:
(i) the approved professional development sponsor’s compliance with the Act and these Regulations in relation to the approved professional development sponsor’s sponsorship, the program and any overseas participant; and
(ii) an overseas participant’s compliance with the conditions to which the overseas participant’s visa is subject; and
(i) to co-operate with the Department’s monitoring of the approved professional development sponsor and of an overseas participant sponsored by the sponsor; and
(j) not to employ a non-citizen who does not hold a visa permitting the non-citizen to work (whether for reward or otherwise); and
(k) not to employ a non-citizen in breach of a visa condition restricting the work that the non-citizen may perform in Australia; and
(l) to pay all medical or hospital expenses for the overseas participant (other than expenses that are met in accordance with health insurance arrangements); and
(m) to pay to the Commonwealth an amount equal to all costs incurred by the Commonwealth in relation to an overseas participant (including costs mentioned in subregulation (2)).
(2) For paragraph (1) (m), the costs include the cost of:
(a) locating the overseas participant; and
(b) detaining the overseas participant; and
(c) removing the overseas participant from Australia; and
(d) processing an application for a protection visa made by the overseas participant.
Note An undertaking is not enforceable in relation to costs of locating and detaining an overseas participant that exceed the limit prescribed by regulation 1.20PA.
1.20PA Limit in relation to costs of location and detention For subsection 140I (4) of the Act, the limit (over which an undertaking in relation to the costs of the Commonwealth in locating and detaining an overseas participant is not enforceable) is $10 000.
1.20PB Consequences if approved professional development sponsor or visa holder changes status For subsection 140Q (1) of the Act, an undertaking arising out of the sponsorship of the holder of a Subclass 470 (Professional Development) visa remains enforceable against the sponsor concerned until the time set out in the following table.
1 | Paragraph 1.20P (1) (l) | The time when the expenses are paid |
2 | Paragraph 1.20P (1) (m) | The time when the amount is paid |
3 | Paragraph 1.20P (1) (c) or (d), subparagraph 1.20P (1) (f) (iii), paragraph 1.20P (1) (h), (i), (j) or (k) | If the sponsor ceases to be an approved sponsor of the sponsored person, and the sponsored person ceases to hold a Subclass 470 (Professional Development) visa for which he or she was sponsored — the time when the person ceases to be an overseas participant |
4 | Paragraph 1.20P (1) (a), (b) or (e), subparagraph 1.20P (1) (f) (i), (ii) or (iv), paragraph 1.20P (1) (g) | If the sponsor ceases to be an approved sponsor of the sponsored person, and the sponsored person ceases to hold a Subclass 470 (Professional Development) visa for which he or she was sponsored — the time when the sponsored person ceases to hold the Subclass 470 (Professional Development) visa |
Note Undertakings made by an approved professional development sponsor in relation to an overseas participant do not have effect until a visa is granted to the overseas participant (see subsection 140H (3) of the Act).
Subdivision 1.4C.3 Cancelling or barring an approved professional development sponsor
(1) This regulation applies if:
(a) the Minister is satisfied that an approved professional development sponsor has breached an undertaking mentioned in regulation 1.20P; or
(b) the Minister is no longer satisfied as to a matter mentioned in subregulation 1.20NA (2); or
(c) the Minister is no longer satisfied that the approved professional development sponsor is able to comply with an undertaking mentioned in regulation 1.20P.
(2) In deciding which of the actions mentioned in section 140L of the Act to take in the circumstances mentioned in subregulation (1), the criteria that the Minister must take into account are:
(a) the severity of the breach or other conduct; and
(b) the past conduct of the sponsor; and
(c) the impact (if any) of the taking of the action may have on the Australian community; and
(d) whether barring the approved professional development sponsor in a way mentioned in section 140L of the Act would be an inadequate means of dealing with the matter, having regard to considerations including:
(i) the seriousness of the inability or failure to comply; and
(ii) the past conduct of the approved professional development sponsor.
(3) If the Minister decides to take any action mentioned in section 140L of the Act, the Minister must give the sponsor written notice of the decision.
(4) The notice must specify:
(a) which of the circumstances mentioned in subregulation (1) apply; and
(b) the specific action to be taken; and
(c) if the action is to bar the approved professional development sponsor — the duration of the bar.
(1) For subsection 140O (1) of the Act, a Subclass 470 (Professional Development) visa is prescribed.
(2) For subsection 140O (2) of the Act, a circumstance in which the Minister may waive a bar placed on an organisation under section 140J or 140K of the Act that is, or was, an approved professional development sponsor is that the organisation has requested, in writing, that the bar be waived.
(3) For subsection 140O (3) of the Act, the criteria to be taken into account by the Minister in determining whether to waive a bar are that:
(a) there would be significant social, economic or political benefits to Australia if the bar were waived; and
(b) there has been a substantial change in the organisation’s circumstances significantly minimising the likelihood of further breaches or unacceptable conduct in other circumstances; and
(c) the benefits to Australia and the change in the organisation’s circumstances outweigh the severity of the breach of undertakings or other conduct that resulted in the bar; and
(d) if the Minister has previously refused to waive the bar — the Minister is satisfied that the circumstances relevant to the criteria mentioned in paragraphs (a), (b) and (c) have changed substantially since the refusal to waive the bar.
1.20S Giving notice about a bar, waiving a bar or cancellation If the Minister takes action mentioned in section 140L or 140O of the Act in relation to an organisation, the Minister must give the organisation notice of the action in accordance with section 494B of the Act.
Note If the Minister gives a document to a person by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified for the method in section 494C of the Act.
For section 140V of the Act:
(a) personal information that may be disclosed to an approved professional development sponsor or a former approved professional development sponsor about the holder or former holder of a Subclass 470 (Professional Development) visa (the
person ) is:
(i) details of any breaches of visa conditions by the person; and
(ii) if the person no longer holds a valid Subclass 470 (Professional Development) visa and remains in Australia as an unlawful non-citizen — that information; and
(iii) details of any hospital or medical expenses for the person that the sponsor or former sponsor is required to pay; and
(iv) details of any costs incurred by the Commonwealth in relation to the person; and
(v) details of the cost of return travel from Australia by the person, while the person was the holder of a Subclass 470 (Professional Development) visa; and
(vi) details of any non-compliance with the immigration laws of Australia by the person; and
(vii) if the person’s standard of living, while the person was the holder of a Subclass 470 visa was not consistent with a reasonable standard of living in Australia — that information; and
(viii) details of any material change in the person’s circumstances; and
(ix) details of any matter that affected the person’s ability to comply with the conditions to which the person’s visa was subject; and
(b) the circumstances in which the Minister may disclose the personal information are that the disclosure is necessary:
(i) to allow the sponsor or former sponsor to respond to a claim about conduct that may lead to action under section 140J or 140K of the Act against the sponsor or former sponsor; or
(ii) to allow the sponsor or former sponsor to meet a liability relating to the sponsorship of the holder or former holder of a Subclass 470 (Professional Development) visa; or
(iii) in connection with a proceeding for review of a decision mentioned in paragraph 4.02 (4) (h) of these Regulations; and
(c) the circumstances in which the sponsor or former sponsor may use or disclose the information are the circumstances set out in paragraph (b).
substitute
(g) a decision under subsection 140E (1) of the Act to refuse an application for approval as an approved professional development sponsor;
(h) a decision under subsection 140J (2) or 140K (2) of the Act to take the action mentioned in paragraph 140L (a), (b), (c), (d), (e) or (f) of the Act in relation to:
(i) an approved professional development sponsor; or
(ii) a former approved professional development sponsor;
substitute
(g) in the case of a decision to which paragraph (4) (h) applies — the approved professional development sponsor or former approved professional development sponsor;
omit sponsor; and
insert sponsor who is not the subject of a bar mentioned in paragraph 140L (c) or (d) of the Act in relation to the professional development sponsorship approval to which the application relates; and
Note Under paragraph 140L (c) or (d) of the Act, an approved professional development sponsor may be barred for a specified period from sponsoring more people under the terms of 1 or more specified, or all, existing approvals for temporary visas.
substitute 470.225 The applicant continues to be sponsored by an approved professional development sponsor who is not the subject of a bar mentioned in paragraph 140L (c) or (d) of the Act in relation to the professional development sponsorship approval to which the application relates.
substitute 470.228 The applicant’s approved professional development sponsor has made the undertakings mentioned in regulation 1.20P in relation to the applicant.
insert
4055AA | 470 (Professional Development) | 8102, 8501, 8531 or 8536 |
(subregulation 3 (3))
after classes
insert or subclasses
insert
(h) Subclass 457 (Business (Long Stay)).
Note Sponsorship arrangements for Subclass 457 (Business (Long Stay)) visas are set out in Division 1.4A of these Regulations.
[ 3 ] Regulation 1.20B, after definition of pre-qualified business sponsor
insert
sponsored person means:
(a) in relation to an applicant for approval as a standard business sponsor:
(i) a person who:
(A) seeks to be granted a Subclass 457 (Business (Long Stay)) visa on the basis that the requirements of subclause 457.223 (4) or (5) of Schedule 2 are met; and
(B) if granted that visa, would be in the employment of the standard business sponsor or a related body corporate; or
(ii) a person who is a member of the family unit of a person who is described in subparagraph (i); and
(b) in relation to a standard business sponsor:
(i) a person who:
(A) holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the requirements of subclause 457.223 (4) or (5) of Schedule 2 are met; and
(B) is, or would be, in the employment of the standard business sponsor or a related body corporate; or
(ii) a person who is a member of the family unit of a person who is described in subparagraph (i).
Note 1 See paragraph 1.20D (2) (b) of these Regulations for information about related bodies corporate.
Note 2 An applicant for approval as a standard business sponsor makes undertakings in relation to a sponsored person (see regulation 1.20CB of these Regulations), but these undertakings do not take effect until:(a) the applicant has been approved as a sponsor under subsection 140E (1) of the Act, and has consented to sponsor the sponsored person in accordance with paragraph 140D (a) of the Act; and
(b) the sponsored person is granted a Subclass 457 (Business (Long Stay)) visa (see subsection 140H (3) of the Act).
insert
1.20BA Application of Division 3A of Part 2 of the Act For section 140A of the Act, Division 3A of Part 2 of the Act applies to the following kinds of visas:
(a) a Subclass 457 (Business (Long Stay)) visa granted on the basis that the requirements of subclause 457.223 (4) of Schedule 2 were met;
(b) a Subclass 457 (Business (Long Stay)) visa granted on the basis that the requirements of subclause 457.223 (5) of Schedule 2 were met;
(c) a Subclass 457 (Business (Long Stay)) visa granted to a person who is a member of the family unit of a person who has been granted a Subclass 457 (Business (Long Stay)) visa on the basis that the requirements of subclause 457.223 (4) or (5) of Schedule 2 were met.
omit A person
insert For subsection 140F (1) of the Act, a person
insert
(1) For subsection 140H (1) of the Act, an applicant for approval as a standard business sponsor must make the following undertakings:
(a) to ensure that the cost of return travel by a sponsored person is met;
(b) not to employ a person who would be in breach of the immigration laws of Australia as a result of being employed;
(c) to comply with its responsibilities under the immigration laws of Australia;
(d) to notify Immigration of:
(i) any change in circumstances that may affect the business’s capacity to honour its sponsorship undertakings; or
(ii) any change to the information that contributed to the applicant’s being approved as a sponsor, or the approval of a nomination;
(e) to cooperate with the Department’s monitoring of the applicant and the sponsored person;
(f) to notify Immigration, within 5 working days after a sponsored person ceases to be in the applicant’s employment;
(g) to comply with:
(i) laws relating to workplace relations that are applicable to the applicant; and
(ii) any workplace agreement that the applicant may enter into with a sponsored person, to the extent that the agreement is consistent with the undertaking required by paragraph (i);
(h) to ensure that a sponsored person holds any licence, registration or membership that is mandatory for the performance of work by the person;
(i) to ensure that, if there is a gazetted minimum salary in force in relation to the nominated position occupied by a sponsored person, the person will be paid at least that salary;
(j) to ensure that, if it is a term of the approval of the nomination of a position that a sponsored person must be employed in a particular location, the applicant will notify Immigration of any change in the location which would affect the nomination approval;
(k) to pay all medical or hospital expenses for a sponsored person (other than costs that are met by health insurance arrangements);
(l) to make any superannuation contributions required for a sponsored person while the sponsored person is in the applicant’s employment;
(m) to deduct tax instalments, and make payments of tax, while the sponsored person is in the applicant’s employment;
(n) to pay to the Commonwealth an amount equal to all costs incurred by the Commonwealth in relation to a sponsored person.
Note Under subsection 140H (3) of the Act, these undertakings do not have effect until the relevant visa is granted. Under paragraph 457.223 (4) (i) or (5) (j) of Schedule 2 to these Regulations, a person must be sponsored by an approved sponsor in order to be granted a Subclass 457 (Business (Long Stay)) visa. See also regulation 1.20BA of these Regulations, by which Division 3A of Part 2 of the Act applies to visas that are relevant to standard business sponsors.
(2) For paragraph (1) (n), the costs include the cost of:
(a) locating the sponsored person; and
(b) detaining the sponsored person; and
(c) removing the sponsored person from Australia (including airfares, transport to an airport in Australia and provision of an escort (if needed)); and
(d) processing an application for a protection visa made by a sponsored person.
Note An undertaking is not enforceable in relation to costs of locating and detaining a sponsored person that exceed the limit prescribed by regulation 1.20CC.
1.20CC Limit in relation to costs of location and detention For subsection 140I (4) of the Act, the limit (over which an undertaking in relation to the costs of the Commonwealth in locating and detaining a sponsored person is not enforceable) is $10 000.
omit The Minister may,
insert For subsections 140E (1), 140F (1) and 140G (1) of the Act, the Minister must,
omit 1196 (internet).
insert 1196 (internet); and
insert
(g) the Minister is satisfied that, if an authorised officer requires security for compliance with the provisions of the Act and these Regulations in relation to the applicant’s undertakings as a sponsor, the applicant has given the security.
omit The Minister may,
insert For subsections 140E (1), 140F (1) and 140G (1) of the Act, the Minister must,
omit 1196.
insert 1196; and
insert
(f) the Minister is satisfied that, if an authorised officer requires security for compliance with the provisions of the Act and these Regulations in relation to the applicant’s undertakings as a sponsor, the applicant has given the security.
insert
1.20DB Consequences if approved business sponsor or sponsored person changes status For subsection 140Q (1) of the Act, an undertaking arising out of the sponsorship of the holder of a visa to which Division 3A of Part 2 of the Act applies remains enforceable against the sponsor concerned until the time set out in the following table.
Note 1 See regulation 1.20BA for the visas to which Division 3A of Part 2 of the Act applies.
Note 2 The effect of subsection 140Q (1) of the Act is that, if no regulations are prescribed for a particular undertaking arising out of a sponsorship, the undertaking ceases to be enforceable if:(a) the visa holder ceases to hold the visa for which he or she was sponsored; or
(b) the sponsor ceases to be an approved sponsor of the visa holder for the visa.
1 | Paragraph 1.20CB (1) (e) | The earlier of:
|
2 | Paragraph 1.20CB (1) (k) | The time when the expenses are paid |
3 | Paragraph 1.20CB (1) (n) | The time when the amount is paid |
Note Undertakings made by an approved standard business sponsor in relation to a sponsored person do not have effect until a visa is granted to the sponsored person: see subsection 140H (3) of the Act.
1.20E Term of approval as standard business sponsor For subsection 140G (2) of the Act, a term of approval as a sponsor under regulation 1.20D or 1.20DA is that the approval ceases, in relation to a particular sponsored person, on the earliest of the following:
(a) at the end of 28 days after the standard business sponsor notifies Immigration that the sponsored person has ceased to be in the applicant’s employment;
(b) if the sponsored person ceases to hold the visa for which he or she was sponsored — when the person leaves Australia;
(c) if the sponsored person ceases to hold the visa for which he or she was sponsored — when the person is granted a substantive visa.
insert
1.20HA Cancelling or barring approval as a sponsor if undertakings breached For subsection 140J (2) of the Act:
(a) the circumstances in which the Minister may take one or more of the actions mentioned in paragraphs 140L (a), (c), (d), (e), (f) or (g) of the Act; and
(b) the criteria to be taken into account by the Minister in determining what action to take under those paragraphs;
are set out in the following table.
Note As well as barring a sponsor, this regulation deals with cancelling approval as a sponsor, other than as a business sponsor (as defined in section 137A of the Act). In accordance with subsections 140J (5) and 140K (5) of the Act, the cancellation of approval of a business sponsor is dealt with by Subdivision GA of Division 3 of Part 2 of the Act.
1 | Paragraph 140L (a), (c), (d), (e) or (f) of the Act | An undertaking has been breached by the standard business sponsor (or former standard business sponsor against whom the undertaking remains enforceable) | Both of the following:
|
2 | Paragraph 140L (g) of the Act | An undertaking has been breached by the standard business sponsor (or former standard business sponsor against whom the undertaking remains enforceable) | Each of the following:
|
| |||
|
1.20HB Cancelling or barring approval as a sponsor in circumstances other than those set out in regulation 1.20HA For subsection 140K (1) of the Act:
(a) the circumstances in which the Minister may take one or more of the actions mentioned in section 140L of the Act; and
(b) the criteria to be taken into account by the Minister in determining what action to take under that section;
are set out in the following table.
Note As well as barring a sponsor, this regulation deals with cancelling approval as a sponsor, other than as a business sponsor (as defined in section 137A of the Act). In accordance with subsections 140J (5) and 140K (5) of the Act, the cancellation of approval of a business sponsor is dealt with by Subdivision GA of Division 3 of Part 2 of the Act.
1 | Paragraph 140L (a), (c), (d), (e) or (f) of the Act | The Minister is satisfied that the standard business sponsor:
| Both of the following:
|
| |||
2 | Paragraph 140L (g) of the Act | The Minister is satisfied that the standard business sponsor:
| Each of the following:
|
|
|
(1) For subsection 140O (1) of the Act, the following kinds of visas are prescribed:
(a) a Subclass 457 (Business (Long Stay)) visa granted on the basis that the requirements of subclause 457.223 (4) of Schedule 2 were met;
(b) a Subclass 457 (Business (Long Stay)) visa granted on the basis that the requirements of subclause 457.223 (5) of Schedule 2 were met;
(c) a Subclass 457 (Business (Long Stay)) visa granted to a person who is a member of the family unit of a person who has been granted a Subclass 457 (Business (Long Stay)) visa on the basis that the requirements of subclause 457.223 (4) or (5) of Schedule 2 were met.
(2) For subsection 140O (2) of the Act, a circumstance in which the Minister may waive a bar placed on a standard business sponsor, or a former business sponsor, under section 140J or 140K of the Act is that the person has made a request to the Minister to waive the bar.
(3) For subsection 140O (3) of the Act, the criteria to be taken into account by the Minister in determining whether to waive the bar are:
(a) whether Australia’s interests would be significantly affected if the bar were not waived; and
(b) whether a substantial trade opportunity would be lost if the bar were not waived; and
(c) whether there would be a significant detriment to the Australian community if the bar were not waived; and
(d) whether the person’s inability to be a standard business sponsor would significantly damage Australia’s relations with the government of another country; and
(e) if the Minister has previously refused to waive the bar — whether the Minister is satisfied that the circumstances in which the Minister took the criteria in paragraphs (a), (b), (c) and (d) into account have changed substantially.
For subsection 140P (1) of the Act, a request to the Minister to waive a bar placed on a person under section 140J or 140K of the Act must be made in writing.
insert in Division 1.4A
For section 140V of the Act:
(a) personal information that may be disclosed to a standard business sponsor or a former standard business sponsor about the holder or former holder of a Subclass 457 (Business (Long Stay)) visa is:
(i) details of any breaches of visa conditions by the sponsored person; and
(ii) information about whether the sponsored person holds a valid Subclass 457 (Business (Long Stay)) visa, and remains in Australia as an unlawful
non-citizen; and
(iii) information about the sponsored person’s salary or other workplace conditions; and
(iv) details of any hospital or medical expenses for the sponsored person that the sponsor or former sponsor is required to pay; and
(v) details of any costs incurred by the Commonwealth in relation to the sponsored person; and
(b) the circumstances in which the Minister may disclose the personal information are that the disclosure is necessary:
(i) to allow the sponsor to respond to a claim that the sponsor has engaged in conduct that may lead to action under section 140J or 140K of the Act against the sponsor; or
(ii) to allow the sponsor to meet a liability relating to the sponsorship of the holder or former holder; or
(iii) in connection with a proceeding for review of a decision mentioned in paragraph 4.02 (4) (i) of these Regulations; and
(c) the circumstances in which the standard business sponsor or former standard business sponsor may use or disclose the information are the circumstances set out in paragraph (b).
insert
(1A) For paragraph 338 (2) (d) of the Act, a Subclass 457 (Business (Long Stay)) visa is prescribed.
substitute
(i) a decision under subsection 140J (2) or 140K (2) of the Act to take the action mentioned in paragraph 140L (a), (c), (d), (e), (f) or (g) of the Act in relation to:
(i) a standard business sponsor; or
(ii) a former standard business sponsor.
insert
(h) in the case of a decision to which paragraph (4) (i) applies — the former sponsor, or former approved sponsor, to whom the action relates.
omit Australia.
insert Australia; and
insert
(i) the applicant is sponsored by an approved sponsor within the meaning of section 140D of the Act.
omit Australia.
insert Australia; and
insert
(j) the applicant is sponsored by an approved sponsor within the meaning of section 140D of the Act.
insert
457.324A The applicant is:
(a) a member of the family unit of the applicant who satisfied the criterion in clause 457.223 of being sponsored by an approved sponsor within the meaning of section 140D of the Act; and
(b) included in that sponsorship.
(subregulation 3 (1))
omit each education sector.
insert each subclass of student visa.
substitute
(1) An applicant for a student visa who seeks to satisfy the primary criteria is subject to the assessment level specified by the Minister at the time of application in relation to the relevant subclass of student visa for the eligible passport that the applicant holds at the time of decision.
substitute
5010 (1) If:
(a) the applicant is the holder of an AusAID student visa; or
(b) the applicant is the holder of a Subclass 560, 562, 563, 570, 571, 572, 573, 574 or 575 visa granted to the applicant who is provided financial support by the government of a foreign country;
the applicant meets the requirements of subclause (3), (4) or (5).
(2) If:
(a) the applicant is not the holder of an AusAID student visa and has in the past held an AusAID student visa; or
(b) both:
(i) paragraph (a) does not apply to the applicant, and the applicant is not the holder of a substantive visa; and
(ii) the last substantive visa held by the applicant was a Subclass 560, 562, 563, 570, 571, 572, 573, 574 or 575 visa granted to the applicant who was provided financial support by the government of a foreign country;
the applicant meets the requirements of subclause (3), (4) or (5).
(3) The applicant meets the requirements of this subclause if the course of study or training to which:
(a) the visa mentioned in paragraph (1) (a) or (b) relates; or
(b) if paragraph (2) (a) applies — the AusAID visa most recently held by the applicant related; or
(c) if paragraph (2) (b) applies — the last substantive visa held by the applicant related;
(whether or not the applicant has ceased the course) is one designed to be undertaken over a period of less than 12 months.
(4) The applicant meets the requirements of this subclause if the applicant:
(a) has ceased:
(i) the course of study or training to which:
(A) the visa mentioned in paragraph (1) (a) or (b) relates; or
(B) if paragraph (2) (a) applies — the AusAID visa most recently held by the applicant related; or
(C) if paragraph (2) (b) applies — the last substantive visa held by the applicant related; or
(ii) another course approved by the AusAID Minister or the government of the foreign country that provided financial support to the applicant, as the case requires, in substitution for that course; and
(b) has spent at least 2 years outside Australia since ceasing the course.
(5) The applicant meets the requirements of this subclause if:
(a) the applicant has the support of the AusAID Minister or the government of the foreign country that provided financial support to the applicant, as the case requires, for the grant of the visa; or
(b) the Minister is satisfied that, in the particular case, waiving the requirement of paragraph (a) is justified by:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(6) In this clause:
AusAID student visa has the same meaning as in regulation 1.04A.
cease has the same meaning as in regulation 1.04A.
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; 2004 Nos. 21 and 93.
2. Notified in the
Commonwealth of Australia Gazette on 18 June 2004.
0
0
0