Migration Amendment Regulations 2004 (No. 8) (Cth)

Migration Amendment Regulations 2004 (No. 8)¹

Statutory Rules 2004 No. 390²

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 16 December 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

Contents

1Name of Regulations  3

2Commencement  3

3Amendment of Migration Regulations 1994  3

4Transitional  3

Schedule 1Amendments relating to business visas, sponsorship and review of decisions     6

Schedule 2Amendments relating to Internet applications for visas 11

Schedule 3Amendments relating to student visas  13

Schedule 4Amendments relating to Sponsored Family Visitor visas  15

Schedule 5Amendments relating to the definition of member of the family unit      19

Schedule 6Amendments relating to visas for adopted children    20

Schedule 7Amendments relating to assurance of support         22

Schedule 8Amendments relating to Student Guardian visas and applications for visas after MRT decisions  23

Part 1Amendments relating to Student Guardian visas           23

Part 2Amendments relating to applications for visas after MRT decisions    25

1. Name of Regulations

These Regulations are the Migration Amendment Regulations 2004 (No. 8).

1. Commencement

These Regulations commence, or are taken to have commenced, as follows:

(a)on 1 July 2004 — regulations 1, 2, 3 and 4 and Schedule 7;

(b)on the date of their notification in the Gazette — Schedules 2 and 8;

(c)on 2 April 2005 — Schedules 1, 3, 4, 5 and 6.

1. Amendment of Migration Regulations 1994

Schedules 1, 2, 3, 4, 5, 6, 7 and 8 amend the Migration Regulations 1994.

1. Transitional

(1)The amendments made by Schedule 1 (other than item [8]) apply in relation to:

(a)an application for a visa; or

(b)an application for approval as a standard business sponsor; or

(c)an application for approval of a nomination of a business activity;

made on or after 2 April 2005.

(2)The amendment made by item [8] of Schedule 1 does not apply in relation to a decision under regulation 1.20E of the Migration Regulations 1994 as in force before 1 July 2003.

(3)The amendments made by Schedule 2 apply in relation to an application for a visa made on or after the day on which Schedule 2 commences.

(4)The amendments made by Schedules 3 and 4 apply in relation to an application for a visa made on or after 2 April 2005.

(5)The amendments made by Schedule 5 apply in relation to:

(a)an application for a visa; and

(b)an application for approval as a sponsor; and

(c)a nomination in relation to an application for a visa;

made on or after 2 April 2005.

(6)The amendments made by Schedule 5 apply in relation to the cancellation of a visa if the application for the visa was made on or after 2 April 2005.

(7)The amendments made by Schedule 6 apply in relation to an application for a visa made on or after 2 April 2005.

(8)The amendments made by Schedule 7 apply in relation to an application for a visa:

(a)made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 July 2004; or

(b)made on or after 1 July 2004.

(9)For an application for a visa mentioned in subregulation (8), the amendments made by Schedule 7 do not apply to the extent that, in the period commencing on 1 July 2004 and ending immediately before these Regulations are notified in the Gazette:

(a)the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person; or

(b)liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of notification.

1. The amendments made by Part 1 of Schedule 8 (other than item [5]) apply in relation to an application for a visa:

(a)made on or after 27 August 2004 and before Schedule 8 commences, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before Schedule 8 commences; or

(b)made on or after the day on which Schedule 8 commences.

1. The amendments made by item [5] of Part 1 of Schedule 8 and Part 2 of Schedule 8 apply in relation to an application for a visa made on or after the day on which Schedule 8 commences.

Schedule 1          Amendments relating to business visas, sponsorship and review of decisions

(regulation 3)

[1]          Paragraph 1.20C (2) (a)

omit

1067 or

[2]          Paragraph 1.20C (2) (b)

omit

1067,

[3]          Paragraph 1.20D (2) (f)

omit

1067,

[4]          Paragraph 1.20DA (2) (e)

omit

1067 or

[5]          Paragraph 1.20G (3) (a)

omit

1068 or

[6]          Paragraph 1.20G (3) (b)

omit

1068,

[7]          Subregulation 1.20GA (3)

omit

1068,

[8]          Paragraph 4.02 (4) (b)

omit

[9]          Paragraph 4.02 (4) (k)

omit

child.

insert

child;

[10]        After paragraph 4.02 (4) (k)

insert

(l)a decision to refuse to grant a Subclass 457 (Business (Long Stay)) visa to a non-citizen if:

(i)the non-citizen is outside Australia at the time of application; and

(ii)the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

(A)an Australian citizen; or

(B)a company that operates in the migration zone; or

(C)a partnership that operates in the migration zone; or

(D)the holder of a permanent visa; or

(E)a New Zealand citizen who holds a special category visa.

[11]        Paragraph 4.02 (5) (b)

omit

(4) (b) or (c)

insert

(4) (c)

[12]        Paragraph 4.02 (5) (j)

omit

relates.

insert

relates;

[13]        After paragraph 4.02 (5) (j)

insert

(k)in the case of a decision to which paragraph (4) (l) relates — the sponsor or nominator.

[14]        Schedule 2, clause 457.221

omit

in Australia at the time of application,

insert

in Australia,

[15]        Schedule 2, after clause 457.221

insert

457.221AIf:

(a)the applicant is in Australia; and

(b)the applicant was outside Australia at the time of application;

the applicant is the holder of a visa mentioned in paragraph 457.211 (a), (b), (c) or (ca).

[16]        Schedule 2, subparagraph 457.223 (7A) (a) (i)

substitute

(i)the applicant holds a Subclass 457 visa granted on the basis that:

(A)the applicant met the requirements of subclause (7); or

(B)the applicant met the requirements of Subdivision 457.32 as the spouse of a person who held a Subclass 457 visa granted on the basis that he or she met the requirements of subclause (7); or

[17]        Schedule 2, paragraph 457.225 (a)

substitute

(a)the applicant is outside Australia; and

[18]        Schedule 2, clause 457.323

omit

in Australia at the time of application,

insert

in Australia,

[19]        Schedule 2, Division 457.4

substitute

457.4     Circumstances applicable to grant

457.411The applicant may be in or outside Australia at the time of grant, but not in immigration clearance.

[20]        Further amendments — (Internet)

The following provisions are amended by omitting each occurrence of ‘(internet)’ and inserting ‘(Internet)’:

·paragraph 1.20C (2) (b)

·paragraph 1.20D (2) (f)

·paragraph 1.20D (5) (b)

·paragraph 1.20F (c)

·paragraph 1.20G (3) (b)

·subregulation 1.20GA (3)

·paragraph 1.20H (4) (b)

·subparagraph 2.43 (1) (l) (i)

·Schedule 1, sub-subparagraph 1223A (1) (b) (iii) (C)

·Schedule 1, subparagraph 1223A (1) (ba) (iv)

·Schedule 1, subparagraph 1223A (1) (bb) (iii)

·Schedule 1, subitem 1301 (1) (twice occurring)

·Schedule 2, paragraph 457.223 (4) (c)

·Schedule 2, clause 457.324.

Schedule 2          Amendments relating to Internet applications for visas

(regulation 3)

[1]          Regulation 2.12JA

substitute

2.12JAPayment of visa application charge for Internet application

(1)The visa application charge in relation to an Internet application must be paid by:

(a)credit card, in accordance with the instructions given to the applicant as part of making the Internet application; or

(b)funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application.

(2)If the visa application charge is paid in accordance with paragraph (1) (a), the charge is taken not to have been received until the payment has been confirmed by the issuer of the credit card.

(3)If the visa application charge is paid in accordance with paragraph (1) (b), the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form.

1. Subregulation 5.36 (1)

omit

fee

insert

fee, other than a visa application charge mentioned in subregulation (3A),

1. After subregulation 5.36 (3)

insert

(3A)A visa application charge payment made in accordance with regulation 2.12JA must be made in Australian dollars.

Schedule 3          Amendments relating to student visas

(regulation 3)

1. Schedule 1, subparagraph 1222 (2) (a) (i)

omit

a family member

insert

a member of the family unit

1. Schedule 2, clause 570.111, after definition of course fees

insert

course of study means a full-time registered course of study.

Note   To work out whether a course of study is a principal course, see subregulation 1.40 (2).

1. Schedule 5A, clause 5A101, definition of foundation course

relocate after definition of first 36 months

1. Schedule 5A, subparagraph 5A509 (b) (ii)

omit

of at least 1 year’s duration

1. Further amendments — Schedule 5A

Provision	omit	insert
Subparagraph 5A304 (1) (c) (ii)	that	than
Sub-subparagraph 5A304 (8) (a) (vii) (A)	PRC students	PRC applicants
Sub-subparagraph 5A304 (8) (b) (viii) (A)	PRC students	PRC applicants

1. Further amendments — Schedule 5A

Provision	omit each mention of	insert
Sub-subparagraph 5A304 (8) (a) (viii) (A)	PRC students	PRC applicants
Sub-subparagraph 5A304 (8) (b) (ix) (A)	PRC students	PRC applicants

Schedule 4          Amendments relating to Sponsored Family Visitor visas

(regulation 3)

1. Regulation 1.20L, heading

substitute

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

1. Paragraph 1.20L (1) (a)

substitute

(a)the sponsor has previously sponsored another applicant (the previous applicant) for:

(i)a Sponsored (Visitor) (Class UL) visa; or

(ii)a Short Stay Sponsored (Visitor) (Class UL) visa; and

1. Paragraph 1.20L (3) (a)

substitute

(a)the previous applicant is the holder of:

(i)a Subclass 679 (Sponsored Family Visitor (Short Stay)) visa; or

(ii)a Subclass 679 (Sponsored Family Visitor) visa; and

1. After subparagraph 2.43 (1) (j) (ia)

insert

(ib)a Subclass 679 (Sponsored Family Visitor) visa; or

1. Subregulation 4.23 (1)

after

Short Stay Sponsored (Visitor) (Class UL) visa

insert

(also known as a Sponsored (Visitor) (Class UL) visa)

1. Schedule 1, item 1217A, heading

substitute

1217A.Sponsored (Visitor) (Class UL)

1. Schedule 1, paragraph 1217A (1) (b)

omit

(Sponsored Family Visitor (Short Stay)) visa: 48S.

insert

(Sponsored Family Visitor) visa: 48S and 1149.

1. Schedule 1, paragraph 1217A (3) (aa)

substitute

(aa)Application by a person seeking to satisfy the criteria for the grant of a Subclass 679 (Sponsored Family Visitor) visa:

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

(ii)must be lodged by the sponsor of the applicant.

1. Schedule 2, Part 679, heading

substitute

Subclass 679    Sponsored Family Visitor

1. Schedule 2, clause 679.213

omit

3 months.

insert

12 months.

1. Schedule 2, paragraph 679.511 (b)

omit

3 months

insert

12 months

1. Further amendments — Sponsored (Visitor) visa

The following provisions are amended by omitting ‘Short Stay Sponsored (Visitor)’ and inserting ‘Sponsored (Visitor)’:

·subregulation 1.20L (1)

·paragraph 5.38 (1) (a).

1. Further amendments — Short Stay Sponsored (Visitor) visa

The following provisions are amended by inserting after ‘Short Stay Sponsored (Visitor) (Class UL)’ the words ‘(also known as a Sponsored (Visitor) (Class UL))’:

·Schedule 2, subparagraph 855.211 (1) (a) (iii)

·Schedule 2, sub-subparagraph 855.211 (2) (b) (i) (C)

·Schedule 2, subparagraph 856.211 (1) (a) (iii)

·Schedule 2, sub-subparagraph 856.211 (2) (b) (i) (C)

·Schedule 2, subparagraph 857.211 (1) (a) (iii)

·Schedule 2, sub-subparagraph 857.211 (2) (b) (i) (C)

·Schedule 2, subparagraph 858.211 (1) (a) (iii)

·Schedule 2, sub-subparagraph 858.211 (2) (b) (i) (C).

1. Further amendments — Sponsored Family Visitor visa

The following provisions are amended by omitting ‘(Sponsored Family Visitor (Short Stay))’ and inserting ‘(Sponsored Family Visitor)’:

·subregulation 1.20L (1)

·Schedule 1, paragraph 1217A (3) (d)

·Schedule 1, subitem 1217A (4).

Schedule 5          Amendments relating to the definition of member of the family unit

(regulation 3)

1. Paragraph 1.12 (1) (d)

omit

1. Subparagraphs 1.12 (6) (b) (vii) and (viii)

omit

1. Subparagraphs 1.12 (7) (b) (vii) and (viii)

omit

Schedule 6          Amendments relating to visas for adopted children

(regulation 3)

1. Schedule 2, paragraph 102.211 (2) (d)

omit

adoption; and

insert

adoption.

1. Schedule 2, paragraph 102.211 (2) (e)

omit

1. Schedule 2, subparagraph 102.211 (3) (d) (ii)

omit

applicant; and

insert

applicant.

1. Schedule 2, paragraph 102.211 (3) (e)

omit

1. Schedule 2, after clause 102.227

insert

102.227AIf the applicant has met the requirements of subclause 102.211 (3), a competent authority in the overseas country has approved the departure of the applicant:

(a)for adoption in Australia; or

(b)in the custody of the prospective adoptive parent or parents.

1. Schedule 2, paragraph 802.213 (5) (d)

omit

adoption; and

insert

adoption.

1. Schedule 2, paragraph 802.213 (5) (e)

omit

Schedule 7          Amendments relating to assurance of support

(regulation 3)

1. Schedule 2, clause 881.311

omit

a person who satisfies the primary criteria in Subdivision 881.21.

insert

a person who seeks to satisfy the primary criteria.

1. Schedule 2, clause 882.311

omit

a person who satisfies the primary criteria in Subdivision 882.21.

insert

a person who seeks to satisfy the primary criteria.

Schedule 8          Amendments relating to Student Guardian visas and applications for visas after MRT decisions

(regulation 3)

Part 1  Amendments relating to Student Guardian visas

1. Schedule 2, Division 580.2, after the heading

insert

Note   The primary criteria must be satisfied by at least one 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.

1. Schedule 2, subparagraph 580.226 (1) (a) (ii)

omit

regulation 2.07AO, or a family applicant in relation to a person designated under

1. Schedule 2, sub-subparagraph 580.226 (1) (a) (ii) (B)

omit

member of the family unit of the applicant;

insert

family applicant;

1. Schedule 2, Division 580.3, after the heading

insert

Note   Requirements to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

1. Schedule 2, Subdivision 580.31, after the heading

insert

580.310If the application is made outside Australia, the applicant is a member of the family unit of:

(a)a person who is the holder of a Subclass 580 visa; or

(b)a person who satisfies the primary criteria in Subdivision 580.21.

1. Schedule 2, subclause 580.311 (1)

omit

(2) or (3).

insert

(2), (3) or (4).

1. Schedule 2, subclause 580.311 (3)

substitute

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

(a)the applicant is not the holder of a substantive visa; and

(b)the applicant is a member of the family unit of a person who meets the requirements of subclause 580.211 (2).

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

(a)the applicant is not the holder of a substantive visa; and

(b)the applicant is a member of the family unit of a person who meets the requirements of subclause 580.211 (3); and

(c)the applicant was a member of the family unit of the person at the time that person’s last substantive visa ceased to be in effect.

1. Schedule 8, paragraph 8535 (c)

substitute

(c)a Student (Temporary) (Class TU) visa that is granted to an applicant who satisfies the criterion in clause 570.230, 571.229, 572.229, 573.229, 574.229, 575.229, 576.227 or 580.229 of Schedule 2;

1. Further amendments — Schedule 2, Part 580

Provision	omit	insert
Subparagraph 580.211 (2) (d) (ii)	Executive); or	Executive);
Subclause 580.223 (2A)	subclause (2) (d)	paragraph (2) (d)
Sub-subparagraph 580.227 (c) (iii) (B)	Executive); or	Executive);
Subparagraph 580.311 (2) (d) (ii)	Executive); or	Executive);
Paragraph 580.323 (a)	subclause (2A),	subclause 580.223 (2A),

Part 2  Amendments relating to applications for visas after MRT decisions

1. Schedule 1, after paragraph 1212A (3) (d)

insert

(da)Applicant is taken to have complied with paragraph (d) if:

(i)the applicant is not the holder of a substantive visa; and

(ii)the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation; and

(iii)that last substantive visa was a visa other than a visa of a kind mentioned, at the time of cancellation, in paragraph (d); and

(iv)the applicant has lodged the application within 28 days after the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

1. Schedule 1, paragraph 1212A (3) (e)

substitute

(e)If the substantive visa, held by an applicant who complies with paragraph (d) (other than an applicant to whom paragraph (ea) applies), is not a Subclass 560, 562, 563, 572, 573 or 574 visa, the applicant 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 that is not of a kind mentioned in paragraph (d).

(ea)If the last substantive visa, held by an applicant who is taken, under paragraph (da), to have complied with paragraph (d), was not a Subclass 560, 562, 563, 572, 573 or 574 visa, the applicant must have been, at some time in the 6 months immediately before that visa was cancelled, the holder of a Subclass 560, 562, 563, 572, 573 or 574 visa that was not of a kind mentioned, at the time of cancellation, in paragraph (d).

1. Schedule 2, paragraph 580.211 (3) (c)

substitute

(c)the application is made within 28 days (or within such period specified by Gazette Notice) after:

(i)the day when that last substantive visa ceased to be in effect; or

(ii)if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision — the later of:

(A)the day when that last substantive visa ceased to be in effect; and

(B)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

1. Schedule 3, subparagraph 3001 (2) (c) (iv)

omit

unlawfully.

insert

unlawfully; or

1. Schedule 3, after paragraph 3001 (2) (c)

insert

(d)if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:

(i)the day when that last substantive visa ceased to be in effect; and

(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

1. Further amendments — Schedule 2

(1)Each paragraph mentioned in subitem (2) is amended by substituting the paragraph with:

‘(c)the application is made within 28 days (or within such period specified by Gazette Notice) after:

(i)the day when that last substantive visa ceased to be in effect; or

(ii)if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:

(A)the day when that last substantive visa ceased to be in effect; and

(B)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and’.

(2)The paragraphs are:

·570.211 (3) (c)

·571.211 (3) (c)

·572.211 (3) (c)

·573.211 (3) (c)

·574.211 (3) (c)

·575.211 (3) (c)

·576.211 (3) (c).

Notes

1. These Regulations amend Statutory Rules 1994 No. 268, as amended by 1994 Nos. 280, 322, 376 and 452; 1995 Nos. 3, 38, 117, 134, 268, 302 and 411; 1996 Nos. 12, 75 (regulations 7 and 8 were disallowed by the Senate on 11 September 1996), 76, 108, 121, 135, 198, 211 (regulations 4, 10, 11, 13.3, 14-37, 47-49, 51, 53-55, 74, 77.16, 77.19, 78, 85, 119 and 114 were disallowed by the Senate on 7 November 1996) and 276; 1997 Nos. 17, 64, 91, 92, 109, 137, 184, 185, 216, 263, 279, 288, 301 and 354; 1998 Nos. 36, 37, 104 (regulation 15 was disallowed by the Senate on 2 July 1998), 139, 210, 214, 284, 285 (disallowed by the Senate on 31 March 1999), 304, 305, 306 and 322; 1999 Nos. 8, 58, 64, 68 (as amended by 1999 Nos. 81 and 132), 76 (as amended by 1999 Nos. 81 and 132), 81 (as amended by 1999 No. 132), 82, 132, 155, 198, 220 (as amended by 1999 Nos. 259 and 321), 243, 259 (as amended by 2000 No. 259 and 2002 No. 213), 260 (as amended by 1999 No. 321), 321 and 325; 2000 Nos. 52, 62, 108, 192, 259 (as amended by 2000 No. 284) (item [4108] of Schedule 4 was disallowed by the Senate on 1 November 2000), 284 and 335; 2001 Nos. 27, 47, 86, 142, 162, 206, 239, 246, 283, 284, 285 and 291; Act No. 128, 2001; Statutory Rules 2001 No. 344; 2002 Nos. 10, 86, 121, 129 (disallowed by the Senate on 19 June 2002), 213, 230, 299, 323, 347, 348 and 354; Act No. 5, 2003; Statutory Rules 2003 Nos. 57, 94, 106, 122, 154, 224 (disallowed by the Senate on 9 October 2003), 239, 283 (disallowed by the Senate on 24 November 2003), 296 (as amended by 2003 No. 363), 362 and 363; 2004 Nos. 21, 93, 131, 191, 192, 223, 269 and 270.

1. Notified in the Commonwealth of Australia Gazette on 23 December 2004.