Migration Amendment Regulations 2005 (No. 8) (Cth)

Migration Amendment Regulations 2005 (No. 8)¹

Select Legislative Instrument 2005 No. 221

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 6 October 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

Name of Regulations

These Regulations are the Migration Amendment Regulations 2005 (No. 8).

Commencement

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

(a)on 27 August 2004 — regulations 1 to 11 and Schedule 1;

(b)on the day after these Regulations are registered — Schedules 2 to 5;

(c)on 1 November 2005 — Schedules 6 to 10.

Amendment of Migration Regulations 1994

Schedules 1 to 10 amend the Migration Regulations 1994.

Transitional — Schedule 1

The amendment made by Schedule 1 applies in relation to an application for a visa made on or after 27 August 2004.

Note There are no transitional arrangements for Schedule 2.

Transitional — Schedule 3

(1)The amendments made by Part 1 of Schedule 3 apply in relation to:

(a)an application for a visa:

(i)made on or after 1 July 2005; and

(ii)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before the day on which Schedule 3 commences; and

(b)an application for a visa made on or after the day on which Schedule 3 commences.

(2)Despite the amendments made by Part 1 of Schedule 3, the Migration Regulations 1994 are taken to apply in relation to an application for a visa:

(a)made before 1 July 2005; and

(b)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 July 2005;

as if those amendments had not been made.

(3)The amendments made by Part 2 of Schedule 3 apply in relation to:

(a)an application for a visa:

(i)made before the day on which Schedule 3 commences; and

(ii)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before the day on which Schedule 3 commences; and

(b)an application for a visa made on or after the day on which Schedule 3 commences.

Transitional — Schedule 4

The amendments made by Schedule 4 apply in relation to:

(a)an application for a visa:

(i)made before the day on which Schedule 4 commences; and

(ii)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before the day on which Schedule 4 commences; and

(b)an application for a visa made on or after the day on which Schedule 4 commences.

Transitional — Schedule 5

The amendment made by Schedule 5 applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which Schedule 5 commences, whether or not a breach of condition 8202 occurred before the day on which Schedule 5 commences.

Transitional — Schedule 6

The amendments made by Schedule 6 apply in relation to an application for a visa made on or after 1 November 2005.

Transitional — Schedule 7

(1)The amendments made by Schedule 7 apply in relation to an application for a visa made on or after 1 November 2005.

(2)Despite the amendments made by Schedule 7, the Migration Regulations 1994 are taken to apply in relation to an application for a visa:

(a)made before 1 November 2005; and

(b)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 November 2005;

as if those amendments had not been made.

Transitional — Schedule 8

(1)The amendments made by Schedule 8 apply in relation to an application for a visa made on or after 1 November 2005.

(2)Despite the amendments made by Schedule 8, the Migration Regulations 1994 are taken to apply in relation to an application for a visa:

(a)made before 1 November 2005; and

(b)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 November 2005;

as if those amendments had not been made.

Note There are no transitional arrangements for Schedule 9.

Transitional — Schedule 10

The amendment made by Schedule 10 applies in relation to an applicant for a visa, described in subregulation 2.08C (1) of the Migration Regulations 1994:

(a)whose application for a visa was:

(i)made before 1 November 2005; and

(ii)not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 1 November 2005; or

(b)whose application for a visa was made on or after 1 November 2005.

Schedule 1 Amendment relating to student visas (taken to have commenced on 27 August 2004)

(regulation 3)

[1] Schedule 1, paragraph 1222 (3) (d)

omit

student visa

insert

Student (Temporary) (Class TU) visa

Schedule 2 Amendment relating to personal identification

(regulation 3)

[1] After regulation 3.17

insert in Division 3.3

3.19Periods within which evidence to be shown to officer

For subsections 188 (2) and (3) of the Act, the periods are:

(a)if the requirement is oral — 5 minutes; or

(b)if the requirement is in writing — 48 hours.

3.19ACircumstances in which an officer must require personal identifiers

For subsection 188 (4) of the Act, the circumstances are that the officer knows or reasonably suspects that the person is a non-citizen and:

(a)the officer knows or suspects that the person has refused or failed to comply with a requirement to provide evidence under subsection 188 (1) of the Act within:

(i)the period mentioned in regulation 3.19; or

(ii)any further period allowed under subsection 188 (2) of the Act; or

(b)during the period or further period the person advises the officer that the person refuses to, or is unable to, comply with a requirement under subsection 188 (1) of the Act; or

(c)during the period or further period the person has provided evidence in order to comply with a requirement under subsection 188 (1) of the Act, and the officer is not satisfied that the evidence is:

(i)authentic; or

(ii)reliable.

Schedule 3 Amendments relating to English language proficiency requirements for student visas

(regulation 3)

Part 1 Courses in the Australian Qualifications Framework

[1] Schedule 5A, sub-subparagraph 5A204 (c) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[2] Schedule 5A, sub-subparagraph 5A404 (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[3] Schedule 5A, sub-subparagraph 5A407 (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[4] Schedule 5A, sub-subparagraph 5A504 (1) (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[5] Schedule 5A, sub-subparagraph 5A507 (1) (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[6] Schedule 5A, sub-subparagraph 5A604 (2) (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[7] Schedule 5A, sub-subparagraph 5A607 (2) (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[8] Schedule 5A, sub-subparagraph 5A704 (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

[9] Schedule 5A, sub-subparagraph 5A707 (d) (ii) (B)

substitute

(B)as the holder of a student visa — successfully completed a substantial part of a course (other than a foundation course) that:

(I)was conducted in English; and

(II)was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

Part 2 Foundation courses

[10] Schedule 5A, sub-subparagraph 5A204 (c) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[11] Schedule 5A, sub-subparagraph 5A404 (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[12] Schedule 5A, sub-subparagraph 5A407 (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[13] Schedule 5A, sub-subparagraph 5A504 (1) (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[14] Schedule 5A, sub-subparagraph 5A507 (1) (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[15] Schedule 5A, sub-subparagraph 5A604 (2) (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[16] Schedule 5A, sub-subparagraph 5A607 (2) (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[17] Schedule 5A, sub-subparagraph 5A704 (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

[18] Schedule 5A, sub-subparagraph 5A707 (d) (ii) (C)

substitute

(C)successfully completed a foundation course that was conducted in Australia and in English;

Schedule 4 Amendments relating to student visas

(regulation 3)

[1] Schedule 2, paragraph 570.232 (b)

substitute

(b)of a type that was specified for Subclass 570 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

[2] Schedule 2, paragraph 571.232 (b)

substitute

(b)of a type that was specified for Subclass 571 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

[3] Schedule 2, paragraph 572.231 (b)

substitute

(b)of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

[4] Schedule 2, paragraph 573.231 (b)

substitute

(b)of a type that was specified for Subclass 573 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

[5] Schedule 2, paragraph 574.231 (b)

substitute

(b)of a type that was specified for Subclass 574 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

[6] Schedule 2, paragraph 575.231 (b)

substitute

(b)of a type that was specified for Subclass 575 visas by the Minister in a Gazette Notice:

(i)made under regulation 1.40A; and

(ii)in force at the time the application was made.

Schedule 5 Amendment relating to Student (Temporary) (Class TU) visa

(regulation 3)

[1] Paragraph 2.43 (2) (b)

substitute

(b)in the case of a Student (Temporary) (Class TU) visa:

(i)that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or

(ii)that the Minister is satisfied that:

(A)the visa holder has not complied with condition 8202; and

(B)the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

Schedule 6 Amendments relating to student visas

(regulation 3)

[1] Paragraph 2.07AF (5) (a)

omit

student visa; and

insert

Student (Temporary) (Class TU) visa; and

[2] Paragraph 2.07AF (5) (b)

substitute

(b)if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa — whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.

[3] Subregulation 2.07AF (5), note

omit

student visa

insert

Student (Temporary) (Class TU) visa

[4] Schedule 1, paragraph 1222 (3) (e)

omit

student visa

insert

Student (Temporary) (Class TU) visa

Schedule 7 Amendments relating to remaining relatives

(regulation 3)

[1] Regulation 1.15

substitute

1.15Remaining relative

(1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

(a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

(b)the other person is usually resident in Australia; and

(c)the applicant, and the applicant’s spouse (if any), have no near relatives other than near relatives who are:

(i) usually resident in Australia; and

(ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

(d)if the applicant is a child who:

(i)has not turned 18; and

(ii)has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

(2)In this regulation:

near relative, in relation to an applicant, means a person who is:

(a)a parent, brother, sister, step-parent, step-brother or step‑sister of the applicant or of the applicant’s spouse (if any); or

(b)a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:

(i)has turned 18 and is not a dependent child of the applicant or the applicant’s spouse (if any); or

(ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse (if any).

[2] Schedule 2, clause 835.111, note

substitute

Note dependent child, eligible New Zealand citizen and settled are defined in regulation 1.03, remaining relative is defined in regulation 1.15 and spouse is defined in regulation 1.15A.

Schedule 8 Amendments relating to New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas

(regulation 3)

[1] Schedule 2, subparagraph 855.212 (4) (a) (viii)

omit

(Class TW); or

insert

(Class TW);

[2] Schedule 2, after subparagraph 855.212 (4) (a) (viii)

insert

(ix)New Zealand Citizen (Family Relationship) (Temporary) (Class UP); or

[3] Schedule 2, subparagraph 856.212 (4) (a) (viii)

omit

(Class TW); or

insert

(Class TW);

[4] Schedule 2, after subparagraph 856.212 (4) (a) (viii)

insert

(ix)New Zealand Citizen (Family Relationship) (Temporary) (Class UP); or

[5] Schedule 2, subparagraph 857.212 (4) (a) (ix)

omit

(Class UX); or

insert

(Class UX);

[6] Schedule 2, after subparagraph 857.212 (4) (a) (ix)

insert

(x)New Zealand Citizen (Family Relationship) (Temporary) (Class UP); or

Schedule 9 Amendments relating to medical and hospital expenses

(regulation 3)

[1] Paragraph 1.20CB (1) (k)

substitute

(k)either:

(i)for an application made before 1 November 2005 — to pay all medical or hospital expenses for a sponsored person (other than costs that are met by health insurance arrangements); or

(ii)for an application made on or after 1 November 2005 — to pay all medical or hospital expenses for a sponsored person arising from treatment administered in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements);

[2] Paragraph 1.20P (1) (l)

substitute

(l)either:

(i)for an application made before 1 November 2005 — to pay all medical or hospital expenses for the overseas participant (other than expenses that are met in accordance with health insurance arrangements); or

(ii)for an application made on or after 1 November 2005 — to pay all medical or hospital expenses for the overseas participant arising from treatment administered in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements); and

[3] Paragraph 1.20UF (e)

substitute

(e)either:

(i)for an application made before 1 November 2005 — to pay all medical or hospital expenses for:

(A)the person designated under regulation 2.07AO; and

(B)each person (if any) mentioned in paragraph 1.20UC (1) (b);

(other than expenses that are met in accordance with health insurance arrangements); or

(ii)for an application made on or after 1 November 2005 — to pay all medical or hospital expenses for:

(A)the person designated under regulation 2.07AO; and

(B)each person (if any) mentioned in paragraph 1.20UC (1) (b);

arising from treatment administered in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements); and

Schedule 10 Amendment relating to employer sponsored applicants

(regulation 3)

[1] Subregulation 2.08C (3)

omit

in accordance with subregulation 5.19 (4).

insert

in accordance with subregulation 5.19 (2) or (4).

Note

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