Migration Amendment Regulations 2005 (No. 1) (Cth)

Migration Amendment Regulations 2005 (No. 1)¹

Select Legislative Instrument 2005 No. 54

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 23 March 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

Contents

1Name of Regulations  2
2Commencement  2
3Amendment of Migration Regulations 1994  2
4Transitional  2

Schedule 1Amendments relating to approval of nominated positions and related visas 4

Schedule 2Amendments relating to Skilled Australian Sponsored (Migrant) (Class BQ) visas 23

Schedule 3Amendments relating to Internet applications for certain visas 24

Schedule 4Amendments relating to Subclass 679 (Sponsored Family Visitor (Short Stay)) visas 27

Name of Regulations

These Regulations are the Migration Amendment Regulations 2005 (No. 1).

Commencement

These Regulations commence on 2 April 2005.

Amendment of Migration Regulations 1994

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

Transitional

(1)The amendments made by Schedule 1 apply in relation to:

(a)an application made on or after 2 April 2005 for approval of a nominated position; and

(b)an application for a visa made on or after 2 April 2005.

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

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

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

Schedule 1 Amendments relating to approval of nominated positions and related visas

(regulation 3)

[1] Subregulation 5.19 (1B)

substitute

(1B)The Minister may, in writing, approve or reject an application.

[2] Subregulation 5.19 (1C)

substitute

(1C)However:

(a)the Minister must approve an application if:

(i) the application is made in accordance with subregulation (1A); and

(ii)the nominated position is the subject of an employer nomination that:

(A)if the application was made using form 785 — meets the requirements of subregulation (2); or

(B)if the application was made using form 1054 — meets the requirements of subregulation (4); and

(iii)the employer is not the subject of an action that is described in section 140L of the Act; and

(b)the Minister must reject an application if any of the requirements in paragraph (a) is not met.

[3] Paragraph 5.19 (1D) (a)

substitute

(a)a copy of the written approval or rejection of the application; and

[4] Subregulations 5.19 (2), (3) and (3A)

substitute

(2)An employer nomination meets the requirements of this subregulation if:

(a)the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:

(i) actively and lawfully operating in Australia; and

(ii)operated by that employer; and

(b)the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

(i) the employer; or

(ii)any officer of any of the entities that constitute the employer; or

(iii)any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

(c)the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and

(d)the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

(i) the Commonwealth; and

(ii)each State or Territory in which the employer operates the business and has employees of that business; and

(e)the Minister is satisfied:

(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

(ii)if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

(f)the appointment will:

(i) provide the employee with full-time employment; and

(ii)be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and

(g)the employee’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and

(h)the tasks to be performed in the nominated position:

(i) correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

(ii)will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

(i) the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.

[5] Subparagraph 5.19 (4) (a) (i)

substitute

(i) actively and lawfully operating in regional Australia; and

[6] Sub-subparagraph 5.19 (4) (b) (i) (B)

omit

2 years; or

insert

2 years; and

[7] After sub-subparagraph 5.19 (4) (b) (i) (B)

insert

(C)will be located in regional Australia; or

[8] Sub-subparagraph 5.19 (4) (b) (ii) (A)

substitute

(A)will provide the employee with either continuing full-time employment or seasonal employment that will continue; and

[9] Sub-subparagraph 5.19 (4) (b) (ii) (B)

after

undertaken

insert

in regional Australia

[10] After sub-subparagraph 5.19 (4) (b) (ii) (B)

insert

(C)will be located in regional Australia; and

[11] Paragraph 5.19 (4) (ca)

omit

[12] Paragraph 5.19 (4) (e)

substitute

(e)a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and

(f)the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

(i) the employer; or

(ii)any officer of any of the entities that constitute the employer; or

(iii)any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

(g)the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and

(h)the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

(i) the Commonwealth; and

(ii)each State or Territory in which the employer operates the business and has employees of that business.

[13] After subregulation 5.19 (4)

insert

(5)In this regulation:

regional Australia means a part of Australia specified by Gazette Notice for this definition.

[14] Schedule 1, paragraph 1114 (3) (a)

substitute

(a)Application must be made in Australia, but not in immigration clearance.

[15] Schedule 1, paragraph 1121 (3) (a)

substitute

(a)Application must be made in Australia, but not in immigration clearance.

[16] Schedule 2, Division 119.1

substitute

119.1 Interpretation

119.111In this Part:

regional Australia has the same meaning as in regulation 5.19.

Note 1 For approved appointment, see regulation 5.19.

Note 2 For functional English, see regulation 5.17.

[17] Schedule 2, subclause 119.211 (1)

substitute

(1) The applicant has been nominated by an employer, in accordance with subregulation 5.19 (4), for an appointment in the business of that employer.

[18] Schedule 2, subclauses 119.211 (3), (4) and (5)

substitute

(3) If subclause (2) does not apply, the applicant:

(a)unless exceptional circumstances apply, has not turned 45; and

(b)unless exceptional circumstances apply, has functional English; and

(c)unless exceptional circumstances apply, has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification, that is relevant to the appointment.

(4) If it is mandatory in Australia that a person:

(a)hold a licence of a particular kind; or

(b)hold registration of a particular kind; or

(c)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.

[19] Schedule 2, clause 119.221

substitute

119.221The appointment mentioned in subclause 119.211 (1):

(a)has been approved; and

(b)has not been withdrawn; and

(c)continues to satisfy the criteria for approval; and

(d) is still available to the applicant.

Note See regulation 5.19 for the criteria for approval of the appointment.

[20] Schedule 2, after clause 119.311

insert

119.312Any nomination given in respect of the other person mentioned in clause 119.311 includes the applicant.

[21] Schedule 2, Division 120.1, note

substitute

Note 1 For IASS agreement, see regulation 1.16B.

Note 2 For labour agreement, see regulation 1.03.

Note 3 For RHQ agreement, see regulation 1.16A.

There are no interpretation provisions specific to this Part

[22] Schedule 2, subclauses 120.211 (2) to (5)

substitute

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

(a)the applicant has been nominated to work in Australia, in accordance with a labour agreement that is in effect, by an employer that is a party to that labour agreement; and

(b)the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement; and

(c)unless exceptional circumstances apply, the applicant has not turned 45; and

(d)the requirements of the labour agreement have been met in relation to the application.

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

(a)the applicant has been nominated to work in Australia, in accordance with an RHQ agreement that is in effect, by an employer that is a party to that RHQ agreement; and

(b)the requirements of the RHQ agreement have been met in relation to the application.

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

(a)the applicant has been nominated to work in Australia, in accordance with an IASS agreement that is in effect, by an employer that is a party to that IASS agreement; and

(b)the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the IASS agreement; and

(c)unless exceptional circumstances apply, the applicant has not turned 45; and

(d)the requirements of the IASS agreement have been met in relation to the application.

(5) For an applicant who, under regulation 2.08C, is taken to have applied for a Labour Agreement (Migrant) (Class AU) visa, and who seeks to enter Australia to work in accordance with a labour agreement:

(a)the applicant has been nominated to work in Australia, in accordance with a labour agreement that is in effect, by an employer that is a party to that labour agreement; and

(b)the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement; and

(c)the applicant had not turned 45 at the time of the application for an Independent (Migrant) (Class AT) visa, a Skilled — Independent (Migrant) (Class BN) visa or a Skill Matching (Migrant) (Class BR) visa; and

(d)the requirements of the labour agreement have been met in relation to the application.

[23] Schedule 2, after clause 120.225

insert

120.226(1) The applicant meets the requirements of subclause (2), (3) or (4).

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

(a)the employer mentioned in subclause 120.211 (2) or (5) is a party to a labour agreement that is in effect; and

(b)the nomination mentioned in subclause 120.211 (2) or (5):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

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

(a)the employer mentioned in subclause 120.211 (3) is a party to an RHQ agreement that is in effect; and

(b)the nomination mentioned in subclause 120.211 (3):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

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

(a)the employer mentioned in subclause 120.211 (4) is a party to an IASS agreement that is in effect; and

(b)the nomination mentioned in subclause 120.211 (4):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

[24] Schedule 2, after clause 120.311

insert

120.312Any nomination given in respect of the other person mentioned in clause 120.311 includes the applicant.

[25] Schedule 2, clause 121.211

substitute

121.211Each of the following is satisfied:

(a)the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;

(b)either:

(i) both of the following are met:

(A)an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;

(B)unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or

(ii)the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph;

(c)the applicant:

(i) unless exceptional circumstances apply, has not turned 45; and

(ii)unless exceptional circumstances apply, has vocational English.

[26] Schedule 2, after clause 121.212

insert

121.213If it is mandatory in Australia that a person:

(a)hold a licence of a particular kind; or

(b)hold registration of a particular kind; or

(c)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.

[27] Schedule 2, clause 121.221

substitute

121.221The appointment mentioned in paragraph 121.211 (a):

(a)has been approved; and

(b)has not been withdrawn; and

(c)continues to satisfy the criteria for approval; and

(d) is still available to the applicant.

Note See regulation 5.19 for the criteria for approval of the appointment.

[28] Schedule 2, after clause 121.311

insert

121.312Any nomination given in respect of the other person mentioned in clause 121.311 includes the applicant.

[29] Schedule 2, paragraph 457.326 (a)

substitute

(a)the applicant is outside Australia; and

[30] Schedule 2, Division 855.1, note

substitute

Note 1 For award course, see regulation 1.03.

Note 2 For category A course, see regulation 1.03.

Note 3 For category B student, see regulation 1.03.

Note 4 For diploma, see subregulation 2.26A (6).

Note 5 For IASS agreement, see regulation 1.16B.

Note 6 For labour agreement, see regulation 1.03.

Note 7 For RHQ agreement, see regulation 1.16A.

There are no interpretation provisions specific to this Part

[31] Schedule 2, subclause 855.213 (1)

substitute

(1) The applicant meets the requirements of subclause (2), (3) or (4).

[32] Schedule 2, subclauses 855.213 (2) and (3)

substitute

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

(a)the applicant has been nominated to work in Australia, in accordance with a labour agreement that is in effect, by an employer that is a party to that labour agreement; and

(b)the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the labour agreement; and

(c)unless exceptional circumstances apply, the applicant has not turned 45; and

(d)the requirements of the labour agreement have been met in relation to the application.

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

(a)the applicant has been nominated to work in Australia, in accordance with an RHQ agreement that is in effect, by an employer that is a party to that RHQ agreement; and

(b)the requirements of the RHQ agreement have been met in relation to the application.

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

(a)the applicant has been nominated to work in Australia, in accordance with an IASS agreement that is in effect, by an employer that is a party to that IASS agreement; and

(b)the applicant has qualifications and experience that are suitable for the position to be taken by the applicant under the IASS agreement; and

(c)unless exceptional circumstances apply, the applicant has not turned 45; and

(d)the requirements of the IASS agreement have been met in relation to the application.

[33] Schedule 2, clause 855.221

substitute

855.221(1) The applicant meets the requirements of subclause (2), (3) or (4).

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

(a)the employer mentioned in subclause 855.213 (2) is a party to a labour agreement that is in effect; and

(b)the nomination mentioned in subclause 855.213 (2):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

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

(a)the employer mentioned in subclause 855.213 (3) is a party to an RHQ agreement that is in effect; and

(b) the nomination mentioned in subclause 855.213 (3):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

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

(a)the employer mentioned in subclause 855.213 (4) is a party to an IASS agreement that is in effect; and

(b)the nomination mentioned in subclause 855.213 (4):

(i) has been approved; and

(ii)has not been withdrawn; and

(c)the position specified in the nomination is still available to the applicant.

[34] Schedule 2, clause 855.222

substitute

855.222The Minister is satisfied that the applicant’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards.

[35] Schedule 2, clause 855.312

substitute

855.312Any nomination given in respect of that other person includes the applicant.

[36] Schedule 2, clause 856.213

substitute

856.213Each of the following is satisfied:

(a)the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;

(b)either:

(i) both of the following are met:

(A)an assessing authority specified by the Minister in a Gazette Notice for this sub-subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant’s skills as suitable;

(B)unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or

(ii)the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph; or

(iii)the applicant:

(A)holds a Subclass 457, 418, 422, 428, 421 or 444 visa; and

(B)has worked full-time in the occupation to which the appointment relates in Australia, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 2 years immediately before making the application; and

(C)has worked full-time for the employer mentioned in paragraph (a), and in the occupation to which the appointment relates, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 1 year immediately before making the application;

(c)the applicant:

(i) unless exceptional circumstances apply, has not turned 45; and

(ii)unless exceptional circumstances apply, has vocational English.

[37] Schedule 2, after clause 856.214

insert

856.215If it is mandatory in Australia that a person:

(a)hold a licence of a particular kind; or

(b)hold registration of a particular kind; or

(c)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.

[38] Schedule 2, clause 856.221

substitute

856.221The appointment mentioned in paragraph 856.213 (a):

(a)has been approved; and

(b)has not been withdrawn; and

(c)continues to satisfy the criteria for approval; and

(d) is still available to the applicant.

Note See regulation 5.19 for the criteria for approval of the appointment.

[39] Schedule 2, clause 856.312

substitute

856.312Any nomination given in respect of that other person includes the applicant.

[40] Schedule 2, Division 857.1

substitute

857.1 Interpretation

857.111In this Part:

regional Australia has the same meaning as in regulation 5.19.

Note 1 For approved appointment, see regulation 5.19.

Note 2 For award course, see regulation 1.03.

Note 3 For category A course, see regulation 1.03.

Note 4 For category B student, see regulation 1.03.

Note 5 For diploma, see subregulation 2.26A (6).

Note 6 For functional English, see regulation 5.17.

Note 7 For IASS agreement, see regulation 1.16B.

Note 8 For labour agreement, see regulation 1.03.

Note 9 For RHQ agreement, see regulation 1.16A.

[41] Schedule 2, clause 857.213

substitute

857.213Each of the following is satisfied:

(a)the applicant has been nominated by an employer, in accordance with subregulation 5.19 (4), for an appointment in the business of that employer;

(b)the applicant

(i) in the case of an applicant who is taken, under regulation 2.08CA or 2.08CB, to have applied for an Employer Nomination (Residence) (Class BW) visa:

(A)had not turned 45 at the time of the application for a Skilled — New Zealand Citizen (Residence) (Class DB) or Skilled — Independent Overseas Student (Residence) (Class DD) visa; and

(B)has vocational English; and

(C)has a diploma (within the meaning of subregulation 2.26A (6)), or a higher qualification, that is, unless the appointment is exceptional, relevant to that appointment; or

(ii)in any other case:

(A)unless exceptional circumstances apply, has not turned 45; and

(B)unless exceptional circumstances apply, has functional English; and

(C)unless exceptional circumstances apply, has a diploma (within the meaning of subregulation 2.26A (6)) or a higher qualification, that is relevant to the appointment;

(c)if it is mandatory in Australia that a person:

(i) hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.

[42] Schedule 2, clause 857.221

substitute

857.221The appointment mentioned in paragraph 857.213 (a):

(a)has been approved; and

(b)has not been withdrawn; and

(c)continues to satisfy the criteria for approval; and

(d) is still available to the applicant.

Note See regulation 5.19 for the criteria for approval of the appointment.

[43] Schedule 2, clause 857.312

substitute

857.312Any nomination given in respect of that other person includes the applicant.

Schedule 2 Amendments relating to Skilled Australian Sponsored (Migrant) (Class BQ) visas

(regulation 3)

[1] Regulation 1.03, definition of skilled occupation

substitute

skilled occupation means:

(a)in relation to an applicant for a Skilled Australian Sponsored (Migrant) (Class BQ) visa whose sponsor has, on the sponsorship form, stated a residential address the postcode of which is specified in a Gazette Notice for this paragraph — an occupation:

(i) that is in the Sydney and Selected Areas Skilled Shortage List specified in that Gazette Notice; and

(ii)for which a number of points specified in that Gazette Notice are available; and

(b)in any other case — an occupation that is specified in a Gazette Notice for this paragraph as a skilled occupation for which a number of points specified in that Gazette Notice are available.

[2] Schedule 1, after paragraph 1128B (3) (c)

insert

(d)Application must be accompanied by a sponsorship form completed by a person who is the sponsor of the applicant.

Schedule 3 Amendments relating to Internet applications for certain visas

(regulation 3)

[1] Regulation 1.03, definition of Internet application

substitute

Internet application means an application for a visa made using a form mentioned in paragraph 1.18 (2) (b) that is sent to Immigration by electronic transmission using a facility made available at an Internet site mentioned in subparagraph 1.18 (2) (b) (ii), in a way authorised by that facility.

[2] Schedule 1, paragraph 1124B (1) (b)

omit

47SP.

insert

47SP or 47SP (Internet).

[3] Schedule 1, paragraph 1129 (1) (b)

omit

47SP.

insert

47SP or 47SP (Internet).

[4] Schedule 1, subitem 1214C (1)

omit

47SP.

insert

47SP or 47SP (Internet).

[5] Schedule 1, subitem 1215 (1)

omit

47SP.

insert

47SP or 47SP (Internet).

[6] Schedule 1, subitem 1220A (1)

omit

47SP.

insert

47SP or 47SP (Internet).

[7] Schedule 1, subitem 1301 (1)

after

47SP,

insert

47SP (Internet),

[8] Schedule 1, subitem 1303 (1)

after

47SP,

insert

47SP (Internet),

[9] Schedule 1, subitem 1305 (1)

after

47SP,

insert

47SP (Internet),

Schedule 4 Amendments relating to Subclass 679 (Sponsored Family Visitor (Short Stay)) visas

(regulation 3)

[1] Schedule 2, clause 679.222

omit

subclause 679.214

insert

clause 679.214

[2] Schedule 2, clause 679.611

after

8101,

insert

8201,

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See

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Migration Amendment Regulations 2005 (No. 1) (Cth)

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