Migration Amendment Regulations 2009 (No. 5) (Cth)
Migration Amendment Regulations 2009 (No. 5)
Select Legislative Instrument 2009 No. 115 as amended
made under the
Migration Act 1958
This compilation was prepared on 9 September 2009
[This Regulation was amended by SLI 2009 No. 203 (see F2009L03139) and SLI No. 230 (see F2009L03389)]
Amendments from SLI 2009 No. 203
[Schedule 1 (items 1 and 2) amended regulation
3
Schedule 1 (item 3) added items 1A–1I to Schedule 1
Schedule 1 (items 4 and 5) amended item 2 of Schedule 1
Schedule 1 (item 6) added items 2A–2D to Schedule 1
Schedule 1 (item 7) amended item 3 of Schedule 1
Schedule 1 (item 8) added items 3A–3D to Schedule 1
Schedule 1 (item 9) added items 5A–5I to
Schedule 1
Schedule 1 (item 10) added items 8A–8C to Schedule 1
Schedule 1 (items 11–152) amended item 9 of Schedule 1
Schedule 1 (item 153) added item 10A to Schedule 1
Schedule 1 (items 154–157) amended item 23 of Schedule 1
Schedule 1 (item 158) repealed and
substituted item 25 of Schedule 1
Schedule 1 (item 158) repealed items 26 and 27 of Schedule 1
Schedule 1 (item 159) amended item 28 of Schedule 1
Schedule 1 (item 160) added items 39–161 to Schedule 1
Schedule 1 (items 1–160 commenced on 14 August 2009]
Amendments from
SLI 2009 No. 230
[Schedule 1 (items 1–14) amended item 9 of
Schedule 1
Schedule 1 (items 1–14 commenced on 9 September 2009]
Prepared by the Office of Legislative Drafting and
Publishing,
Attorney-General’s Department, Canberra
-
Name of Regulations
These Regulations are the Migration Amendment Regulations 2009 (No. 5).
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Commencement
These Regulations commence on 14 September 2009.
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Amendment of Migration Regulations 1994
(1)Schedule 1 amends the Migration Regulations 1994.
(2)The amendments made by Schedule 1 apply in relation to:
(a)a work agreement:
(i)entered into before 14 September 2009 and continuing in effect on 14 September 2009; or
(ii)entered into on or after 14 September 2009; and
(b)an application for approval as:
(i)a sponsor under section 140E of the Migration Act 1958, as in force immediately before 14 September 2009, made but not finally determined (within the meaning of subsection 5 (9) of that Act) before 14 September 2009, in relation to an applicant for a Subclass 457 (Business (Long Stay)) visa or a Subclass 470 (Professional Development) visa; or
(ii)a standard business sponsor or a professional development sponsor made on or after 14 September 2009; and
(c)an application for approval as a temporary work sponsor (within the meaning given in regulation 1.03 of the Migration Regulations 1994) made on or after 14 September 2009; and
(d)an application for approval of a nomination of an activity made under regulation 1.20G or 1.20GA of the Migration Regulations 1994 as in force immediately before 14 September 2009, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958) before 14 September 2009; and
(e)a nomination of an occupation, a program or an activity made on or after 14 September 2009; and
(f)an application made on or after 14 September 2009 for 1 of the following visas:
(i)a Subclass 411 (Exchange) visa;
(ii)a Subclass 415 (Foreign Government Agency) visa;
(iii)a Subclass 416 (Special Program) visa;
(iv)a Subclass 419 (Visiting Academic) visa;
(v)a Subclass 420 (Entertainment) visa;
(vi)a Subclass 421 (Sport) visa;
(vii)a Subclass 422 (Medical Practitioner) visa;
(viii)a Subclass 423 (Media and Film Staff) visa;
(ix)a Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
(x)a Subclass 428 (Religious Worker) visa;
(xi)a Subclass 442 (Occupational Trainee) visa;
(xii)a Subclass 470 (Professional Development) visa;
(xiii)a Subclass 488 (Superyacht Crew) visa;
(xiv)a Subclass 571 (Schools Sector) visa;
(xv)a Subclass 572 (Vocational Education and Training Sector) visa;
(xvi)a Subclass 573 (Higher Education Sector) visa;
(xvii)a Subclass 574 (Postgraduate Research Sector) visa.
(2A)The amendments made by Schedule 1 do not apply in relation to an application for approval as a sponsor under regulation 1.20AA made on or after 14 September 2009 if the sponsorship is in relation to a visa application made before 14 September 2009.
(3)If item [45] or [46] of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 applies to a person, a sponsorship obligation imposed by the amendments made by Schedule 1 starts to apply to the person on the later of:
(a)the date on which the obligation commences for the person; and
(b)14 September 2009.
(4)The amendments made by items [10] to [21] of Schedule 1 apply in relation to a decision subject to merit review made by the Minister on or after 14 September 2009.
(5)The amendment made by item [160] of Schedule 1 applies in relation to:
(a)a Subclass 457 (Business (Long Stay)) visa:
(i)that is in force on 14 September 2009; and
(ii)on which condition 8107 is imposed; and
(b)a visa:
(i)that is granted on or after 14 September 2009; and
(ii)on which condition 8107 is imposed.
Note Part 2 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 provides transitional matters relevant to the amendments made by that Schedule. The transitional matters include matters relevant to persons who were, immediately before 14 September 2009, approved sponsors, approved professional development sponsors, standard business sponsors and former standard business sponsors.
Schedule 1 Amendments
(regulation 3)
[1] Regulation 1.03, definition of approved professional development sponsor
omit
[1A]Regulation 1.03, definition of approved special student sponsor
substitute
Arts Minister means the Minister responsible for administering the National Gallery Act 1975.
[1B]Regulation 1.03, after definition of designated security
insert
domestic worker sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the domestic worker sponsor class by the Minister under subsection 140E (1) of the Act.
[1C]Regulation 1.03, after definition of Employment Minister
insert
entertainment sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the entertainment sponsor class by the Minister under subsection 140E (1) of the Act.
[1D]Regulation 1.03, after definition of eVisitor eligible passport
insert
exchange sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the exchange sponsor class by the Minister under subsection 140E (1) of the Act.
[1E]Regulation 1.03, after definition of foreign armed forces dependant
insert
foreign government agency sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the foreign government agency sponsor class by the Minister under subsection 140E (1) of the Act.
[1F]Regulation 1.03, definition of labour agreement
substitute
labour agreement means a formal agreement entered into between:
(a)the Minister, or the Employment Minister; and
(b)a person or organisation in Australia;
under which an employer is authorised to recruit persons to be employed by that employer in Australia.
[1G]Regulation 1.03, definition of net employment benefit
omit
[1H]Regulation 1.03, definition of occupational trainee
omit
[1I]Regulation 1.03, after definition of Occupations Requiring English List
insert
occupational trainee means a person who is in Australia as the holder of a Subclass 442 (Occupational Trainee) visa.
occupational trainee sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the occupational trainee sponsor class by the Minister under subsection 140E (1) of the Act.
[2] Regulation 1.03, after definition of prescribed form
insert
primary sponsored person has the meaning given by subregulation 2.57 (1).
professional development sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the professional development sponsor class by the Minister under subsection 140E (1) of the Act.
Note 1 Approved sponsor is defined in subsection 5 (1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.
Note 2 Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E (2) of the Act. See regulation 2.58.
[2A]Regulation 1.03, definition of religious institution
substitute
religious institution means a body:
(a)the activities of which reflect that it is a body instituted for the promotion of a religious object; and
(b)the beliefs and practices of the members of which constitute a religion due to those members:
(i)believing in a supernatural being, thing or principle; and
(ii)accepting the canons of conduct that give effect to that belief, but that do not offend against the ordinary laws; and
(c)that meets the requirements of section 50-50 of the Income Tax Assessment Act 1997; and
(d)the income of which is exempt from income tax under section 50-1 of that Act.
religious worker sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the religious worker sponsor class by the Minister under subsection 140E (1) of the Act.
[2B]Regulation 1.03, after definition of secondary exchange student
insert
secondary sponsored person has the meaning given by subregulation 2.57 (1).
[2C]Regulations 1.03, after definition of SOFA forces member
insert
special program sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the special program sponsor class by the Minister under subsection 140E (1) of the Act.
[2D]Regulation 1.03, after definition of sponsorship
insert
sport sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the sport sponsor class by the Minister under subsection 140E (1) of the Act.
[3] Regulation 1.03, after definition of spouse
insert
standard business sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the standard business sponsor class by the Minister under subsection 140E (1) of the Act.
Note 1 Approved sponsor is defined in subsection 5 (1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.
Note 2 Different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E (2) of the Act. See regulation 2.58.
Note 3 A person who, immediately before 14 September 2009, was a standard business sponsor or an approved sponsor (other than an approved professional development sponsor), is taken to be approved as a sponsor in relation to the standard business sponsor class under section 140E of the Act. The terms specified in the person’s approval, immediately before 14 September 2009, continue to apply. See item 45 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008.
[3A]Regulation 1.03, after definition of superyacht
insert
superyacht crew sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the superyacht crew sponsor class by the Minister under subsection 140E (1) of the Act.
[3B]Regulation 1.03, after definition of temporary entry permit
insert
temporary work sponsor means any of the following:
(a)an exchange sponsor;
(b)a foreign government agency sponsor;
(c)a special program sponsor;
(d)a visiting academic sponsor;
(e)an entertainment sponsor;
(f)a sport sponsor;
(g)a domestic worker sponsor;
(h)a religious worker sponsor;
(i)an occupational trainee sponsor;
(j)a superyacht crew sponsor.
[3C]Regulation 1.03, after definition of transit passenger
insert
visiting academic sponsor means a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the visiting academic sponsor class by the Minister under subsection 140E (1) of the Act.
[3D]Regulation 1.12A
omit
[4] Division 1.4, heading
substitute
Division 1.4 Sponsorship not applicable to Division 3A of Part 2 of the Act
[5] Regulation 1.20, heading
substitute
1.20Sponsorship undertakings
[5A]Paragraph 1.20 (2) (b)
omit
, Extended Eligibility (Temporary) (Class TK), Sponsored Training (Temporary) (Class UV) or Superyacht Crew (Temporary) (Class UW)
insert
or Extended Eligibility (Temporary) (Class TK)
[5B]Subparagraph 1.20 (2) (e) (ii)
omit
granted;
insert
granted.
[5C]Paragraph 1.20 (2) (f)
omit
[5D]After paragraph 1.20 (4) (e)
insert
(ea)Cultural/Social (Temporary) (Class TE);
(eb)Domestic Worker (Temporary) (Class TG);
(ec)Educational (Temporary) (Class TH);
[5E]After paragraph 1.20 (4) (f)
insert
(fa)Sponsored Training (Temporary) (Class UV);
(fb)Superyacht Crew (Temporary) (Class UW).
[5F]Subregulation 1.20 (4), note
omit
[5G]Subregulation 1.20 (5)
omit
[5H]Subregulation 1.20AA (1)
substitute
(1)This regulation applies to a Subclass 422 (Medical Practitioner) visa.
[5I]Subregulation 1.20AA (2)
omit
a school, foreign government agency or
[6] Division 1.4A
omit
[7] Division 1.4B, heading
substitute
Division 1.4B Limitation on certain sponsorships under Division 1.4
[8] Divisions 1.4C and 1.4D
omit
[8A]After paragraph 2.43 (1) (i)
insert
(ia)in the case of a holder of:
(i)a Subclass 411 (Exchange) visa; or
(ii)a Subclass 415 (Foreign Government Agency) visa; or
(iii)a Subclass 416 (Special Program) visa; or
(iv)a Subclass 419 (Visiting Academic) visa; or
(v)a Subclass 420 (Entertainment) visa; or
(vi)a Subclass 421 (Sport) visa; or
(vii)a Subclass 423 (Media and Film Staff) visa; or
(viii)a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or
(ix)a Subclass 428 (Religious Worker) visa; or
(x)a Subclass 442 (Occupational Trainee) visa; or
(xi)a Subclass 488 (Superyacht Crew) visa;
that the grounds in subregulation (1A) are met; or
[8B]Paragraphs 2.43 (1) (l), (la) and (lb)
substitute
(kb)in the case of the holder of Subclass 457 (Business (Long Stay)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223 (4) — that, despite the grant of the visa, the Minister is satisfied that:
(i)the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223 (4) (d) at the time of grant of the visa; or
(ii)the holder has ceased to have a genuine intention to perform that occupation; or
(iii)the position associated with the nominated occupation is not genuine;
(l)in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:
(i)the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
(ii)the sponsor has given false or misleading information to Immigration or the Migration Review Tribunal in relation to:
(A)the application (if any) under regulation 1.20C for approval as a standard business sponsor; or
(B)any other matter relating to the business sponsor; or
(iii)the sponsor has failed to satisfy a sponsorship obligation; or
(iv)the sponsor has been cancelled or barred under section 140M of the Act; or
(v)the labour agreement has been terminated, has been suspended or has ceased;
(la)in the case of the holder of a Subclass 457 (Business (Long Stay)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009 — that the holder is living or working within an area specified by the Minister in an instrument in writing for this paragraph;
(lc)in the case of a holder of:
(i)a Subclass 411 (Exchange) visa; or
(ii)a Subclass 415 (Foreign Government Agency) visa; or
(iii)a Subclass 416 (Special Program) visa; or
(iv)a Subclass 419 (Visiting Academic) visa; or
(v)a Subclass 420 (Entertainment) visa; or
(vi)a Subclass 421 (Sport) visa; or
(vii)a Subclass 423 (Media and Film Staff) visa; or
(viii)a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or
(ix)a Subclass 428 (Religious Worker) visa; or
(x)a Subclass 442 (Occupational Trainee) visa; or
(xi)a Subclass 488 (Superyacht Crew) visa;
who is a primary sponsored person in relation to a person who is or was an approved sponsor — that 1 of the grounds specified in subregulation (1B) is met;
(ld)in the case of a holder of:
(i)a Subclass 411 (Exchange) visa; or
(ii)a Subclass 419 (Visiting Academic) visa; or
(iii)a Subclass 420 (Entertainment) visa; or
(iv)a Subclass 421 (Sport) visa; or
(v)a Subclass 423 (Media and Film Staff) visa; or
(vi)a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or
(vii)a Subclass 428 (Religious Worker) visa; or
(viii)a Subclass 442 (Occupational Trainee) visa; or
(ix)a Subclass 457 (Business (Long Stay)) visa;
who is a secondary sponsored person in relation to a person who is or was an approved sponsor — that the person who is or was an approved sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified;
(le)in the case of a holder of:
(i)a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or
(ii)a Subclass 428 (Religious Worker) visa; or
(iii)a Subclass 457 (Business (Long Stay)) visa;
who is a primary sponsored person or a secondary sponsored person in relation to a person who is or was an approved sponsor — that the person who is or was an approved sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A;
[8C]After subregulation 2.43 (1)
insert
(1A)For paragraph (1) (ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:
(a)the visa holder’s visa was granted; or
(b)if the visa holder is identified in a nomination after the visa is granted — the visa holder was identified in a nomination.
(1B)For paragraph (1) (lc), the grounds are the following:
(a)the approval of the person as a sponsor has been cancelled, or the approved sponsor has been barred, under section 140M of the Act;
(b)if the approved sponsor is a party to a work agreement — the work agreement has been terminated or has ceased;
(c)if the primary sponsored person is required to be identified in a nomination — the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;
(d)the person who is or was an approved sponsor has failed to satisfy a sponsorship obligation.
[9] After Part 2
insert
Part 2A Sponsorship applicable to Division 3A of Part 2 of the Act
Division 2.11 Introductory
2.56Application
For section 140A of the Act, Division 3A of Part 2 of the Act applies to the following kinds of visa:
(a)the Subclass 411 (Exchange) visa;
(b)the Subclass 415 (Foreign Government Agency) visa;
(c)the Subclass 416 (Special Program) visa;
(d)the Subclass 419 (Visiting Academic) visa;
(e)the Subclass 420 (Entertainment) visa;
(f)the Subclass 421 (Sport) visa;
(g)the Subclass 423 (Media and Film Staff) visa;
(h)the Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
(i)the Subclass 428 (Religious Worker) visa;
(j)the Subclass 442 (Occupational Trainee) visa;
(k)the Subclass 457 (Business (Long Stay)) visa;
(l)the Subclass 470 (Professional Development) visa;
(m)the Subclass 488 (Superyacht Crew) visa.
2.57Interpretation
(1)In this Part:
ASCO means the Australian Standard Classification of Occupations.
associated entity has the same meaning as in section 50AAA of the Corporations Act 2001.
Australian organisation means a body corporate, a partnership or an unincorporated association (other than an individual or a sole trader) that is lawfully established in Australia.
base rate of pay means the rate of pay payable to an employee for his or her ordinary hours of work, but not including any of the following:
(a)incentive-based payments and bonuses;
(b)loadings;
(c)monetary allowances;
(d)overtime or penalty rates;
(e)any other separately identifiable amounts.
Note This definition is based on the definition of base rate of pay in section 16 of the Fair Work Act 2009.
competent authority means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
foreign government agency includes the following:
(a)an organisation:
(i)that is conducted under the official auspices of a foreign national government; and
(ii)that is operating in Australia;
including foreign tourist and media bureaus, trade offices and other foreign government entities;
(b)a foreign diplomatic or consular mission in Australia;
(c)an organisation conducted under the official auspices of an international organisation recognised by Australia.
government agency means an agency of the Commonwealth or of a State or Territory.
officer:
(a)for a corporation — has the same meaning as in section 9 of the Corporations Act 2001; and
(b)for an entity that is neither an individual nor a corporation — has the same meaning as in section 9 of the Corporations Act 2001.
overseas employer, in relation to a person who applies, or proposes to apply, for a Sponsored Training (Temporary) (Class UV) visa, means:
(a)a body corporate or an unincorporated association (other than an individual or sole trader) that:
(i)conducts activities under the auspices of the government of a foreign country or a province, territory or state of a foreign country; and
(ii)has agreed to the professional development sponsor, or the proposed professional development sponsor, lodging a visa application on behalf of the person; or
(b)a multilateral agency that:
(i)is operating; and
(ii)has operated for a continuous period of 12 months before the date of the application; and
(iii)has agreed to the professional development sponsor, or the proposed professional development sponsor, lodging a visa application on behalf of the person; or
(c)a registered business that:
(i)is conducted by a body corporate or unincorporated association (other than an individual or sole trader) outside Australia; and
(ii)is actively and lawfully operating outside Australia; and
(iii)has actively and lawfully operated outside Australia for a continuous period of 12 months before the date of application; and
(iv)employs the person.
participant costs, for a primary sponsored person in a professional development program conducted by a professional development sponsor, means the costs of:
(a)the primary sponsored person’s travel and entry to Australia; and
(b)the primary sponsored person’s tuition for the professional development program; and
(c)the primary sponsored person’s accommodation in Australia; and
(d)the primary sponsored person’s living expenses in Australia; and
(e)the primary sponsored person’s health insurance in Australia; and
(f)the primary sponsored person’s return travel from Australia.
primary sponsored person:
(a)in relation to a person who is or was approved as a sponsor in a class of sponsor (the approved sponsor) under subsection 140E (1) of the Act — means:
(i)a person:
(A)who holds a visa prescribed for the purpose of section 140A of the Act; and
(B)who:
(I)was last identified in an approved nomination by the approved sponsor; or
(II)satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person; or
(ii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a visa prescribed for section 140A of the Act; and
(D)who:
(I)was last identified in an approved nomination by the approved sponsor; or
(II)satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person; or
(b)in relation to a party to a work agreement (other than a Minister) or a former party to a work agreement (other than a Minister) — means:
(i)a person:
(A)who holds a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(B)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement; or
(ii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(D)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement.
professional development agreement means an agreement that meets the requirements mentioned in subregulation 2.60 (2).
professional development program means a program that meets the requirements mentioned in subregulation 2.60 (3).
related body corporate has the same meaning as in section 50 of the Corporations Act 2001.
secondary sponsored person:
(a)in relation to a person who is or was approved as a sponsor in a class of sponsor (the approved sponsor) under subsection 140E (1) of the Act — means:
(i)a person:
(A)who holds a visa prescribed for the purposes of section 140A of the Act; and
(B)who was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and
(C)either:
(I)who was last identified in an approved nomination by the approved sponsor; or
(II)in relation to whom the approved sponsor was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the approved sponsor; or
(ii)a person:
(A)who holds a visa prescribed for the purposes of section 140A of the Act; and
(B)who is taken to have been granted the visa at the time of the person’s birth under section 78 of the Act; and
(C)who is a member of the family unit of:
(I)a primary sponsored person who was last identified in an approved nomination by the approved sponsor; or
(II)a primary sponsored person whom the approved sponsor has agreed in writing to be the approved sponsor of; or
(iii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a visa prescribed for the purposes of section 140A of the Act; and
(D)who was taken to have been granted the visa at the time of the person’s birth under section 78 of the Act; and
(E)who is a member of the family unit of:
(I)a primary sponsored person who was last identified in an approved nomination by the approved sponsor; or
(II)a primary sponsored person whom the approved sponsor has agreed in writing to be the approved sponsor of; or
(iv)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a visa prescribed for the purposes of section 140A of the Act; and
(D)who was granted the visa on the basis of satisfying the secondary criteria for the grant of the visa; and
(E)either:
(I)who was last identified in an approved nomination by the approved sponsor; or
(II)in relation to whom the approved sponsor was the last person to have agreed in writing to the person being a secondary sponsored person in relation to the approved sponsor; or
(b)in relation to a party to a work agreement (other than a Minister) or a former party to a work agreement (other than a Minister) — means:
(i)a person:
(A)who holds a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(B)who was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and
(C)either:
(I)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement; or
(II)in relation to whom the party to a work agreement or the former party to a work agreement was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the party to a work agreement or the former party to a work agreement; or
(ii)a person:
(A)who holds a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(B)who is taken to have been granted the visa at the time of the person’s birth under section 78 of the Act; and
(C)who is a member of the family unit of a primary sponsored person who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement; or
(iii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(D)the visa was granted on the basis of satisfying the secondary criteria for the grant of the visa; and
(E)either:
(I)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement; or
(II)in relation to whom the party to a work agreement or the former party to a work agreement was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the party to a work agreement or the former party to a work agreement; or
(iv)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a Subclass 421 (Sport) visa, a Subclass 428 (Religious Worker) visa or a Subclass 457 (Business (Long Stay)) visa; and
(D)the visa was taken to have been granted at the time of the person’s birth under section 78 of the Act; and
(E)who is a member of the family unit of a primary sponsored person who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement.
sporting organisation means an Australian organisation that administers or promotes sport or sporting events.
Note Approved sponsor is defined in subsection 5 (1) of the Act.
(2)In this Part:
(a)a person (the associated person) is associated with a person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity; and
(b)a person (the associated person) is associated with a person that is a partnership if the associated person is a partner of the partnership; and
(c)a person (the associated person) is associated with a person that is an unincorporated association if the associated person is a member of the association’s committee of management; and
(d)a person (the associated person) is associated with a person that is an entity not mentioned in paragraphs (a), (b) and (c) if the associated person is an officer of the entity.
(3)In this Part, adverse information means any adverse information relevant to a person’s suitability as an approved sponsor, and includes information that:
(a)the person, or a person associated with the person:
(i)has been found guilty by a court of an offence under a Commonwealth, State or Territory law; or
(ii)has, to the satisfaction of a competent authority, acted in contravention of a Commonwealth, State or Territory law; or
(iii)has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of a Commonwealth, State or Territory law; or
(iv)is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
(v)has become insolvent within the meaning of subsections 5 (2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001; and
(b)the law mentioned in subparagraphs (a) (i) to (iv) relates to one or more of the following matters:
(i)discrimination;
(ii)immigration;
(iii)industrial relations;
(iv)occupational health and safety;
(v)people smuggling and related offences;
(vi)slavery, sexual servitude and deceptive recruiting;
(vii)taxation;
(viii)terrorism;
(ix)trafficking in persons and debt bondage; and
(c)the conviction, finding of non‑compliance, administrative action, investigation, legal proceedings or insolvency occurred within the previous 3 years.
(3A)In this Part, a set of terms and conditions of employment for a person (the first set) is less favourable than another set of terms and conditions of employment for a person if:
(a)the earnings provided for in the first set are less than the earnings provided for in the other set; and
(b)there is no substantial contrary evidence that the first set is not less favourable than the other set.
(4)In this Part, the entry of a person to Australia is taken to confer a net employment benefit on Australia if:
(a)the person seeks to enter or remain in Australia to carry out an activity individually or in association with a group; and
(b)the Minister is satisfied that the carrying out of the activity would lead to greater employment of Australian citizens or Australian permanent residents (or both) than if a person normally resident in Australia undertook the activity.
(5)In this Part, a person will perform a volunteer role if:
(a)the person will not receive remuneration for performing the duties of the position, other than the following:
(i)reimbursement for reasonable expenses incurred by the person in performing the duties;
(ii)prize money; and
(b)the duties would not otherwise be carried out by an Australian citizen or an Australian permanent resident in return for wages.
2.57AMeaning of earnings
(1)In this Part, a person’s earnings include:
(a)the person’s wages; and
(b)amounts applied or dealt with in any way on the person’s behalf or as the person directs; and
(c)the agreed money value of non-monetary benefits.
(2)However, an employee’s earnings do not include the following:
(a)payments the amount of which cannot be determined in advance;
(b)reimbursements;
(c)contributions to a superannuation fund to the extent that they are contributions to which subregulation (4) applies.
Note Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).
(3)Non-monetary benefits are benefits other than an entitlement to a payment of money:
(a)to which the employee is entitled in return for the performance of work; and
(b)for which a reasonable money value has been agreed by the employee and the employer.
(4)This subregulation applies to contributions that the employer makes to a superannuation fund to the extent that 1 or more of the following applies:
(a)the employer would have been liable to pay a superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;
(b)the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997) of the employee;
(c)the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, or of a State or a Territory.
Note This definition is based on the definition of earnings in section 332 of the Fair Work Act 2009.
Division 2.12 Classes of sponsor
2.58Classes of sponsor
For subsection 140E (2) of the Act, the following are classes of sponsor in relation to which a person may be approved as a sponsor:
(a)a standard business sponsor;
(b)a professional development sponsor.
(c)an exchange sponsor;
(d)a foreign government agency sponsor;
(e)a special program sponsor;
(f)a visiting academic sponsor;
(g)an entertainment sponsor;
(h)a sport sponsor;
(i)a domestic worker sponsor;
(j)a religious worker sponsor;
(k)an occupational trainee sponsor;
(l)a superyacht crew sponsor.
Note The definition of approved sponsor in subsection 5 (1) of the Act provides that an approved sponsor includes a person (other than a Minister) who is a party to a work agreement. A party to a work agreement is not required to apply for approval as a sponsor, and is not required to be approved as a sponsor in relation to a class of sponsor.
Division 2.13 Criteria for approval of sponsor
Note A party to a work agreement is not required to apply for approval as a sponsor, and is not required to be approved as a sponsor in relation to a class of sponsor.
2.59Criteria for approval as a standard business sponsor
For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and
(b)the applicant:
(i)is not a standard business sponsor; or
(ii)is a standard business sponsor because of the application of subclause 45 (2) of Part 2 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008; and
(c)the applicant is lawfully operating a business (whether in or outside Australia); and
(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and
(e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for paragraph (d); and
(f)if the applicant is lawfully operating a business in Australia —the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to:
(i)employing local labour; and
(ii)non-discriminatory employment practices; and
(g) either:
(i) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(h) if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia — the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or a proposed applicant (the visa applicant) for, a Subclass 457 (Business (Long Stay)) visa, and the applicant intends for the visa holder or visa applicant to:
(i) establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii) fulfil, or assist in fulfilling, a contractual obligation of the applicant.
Note for subparagraph (b) (ii) A person approved as a standard business sponsor before 14 September 2009 can make a new application to become a standard business sponsor on or after 14 September 2009. A person approved as a standard business sponsor on or after 14 September 2009, and who has not ceased to be a standard business sponsor, can apply under section 140GA of the Act for a variation of the terms of approval as a sponsor to extend the duration of the sponsorship approval — see regulation 2.68.
Note for paragraph (g) The meanings of associated with and adverse information are explained in subregulations 2.57 (2) and (3).
2.60 Criteria for approval as a professional development sponsor
(1) For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a professional development sponsor is that the Minister is satisfied that:
(a) the applicant is an Australian organisation or a government agency; and
(b) the applicant:
(i) is a party to a professional development agreement that meets the requirements mentioned in subregulation (2); and
(ii) the agreement is in force at the time of the Minister’s consideration of the application; and
(c) the applicant is offering to conduct a professional development program that satisfies the requirements mentioned in subregulation (3); and
(d) the applicant has demonstrated an overall capacity to conduct a professional development program involving primary sponsored persons; and
(e) the applicant:
(i) has the capacity to meet its financial commitments; and
(ii) has paid any security requested by an authorised officer under section 269 of the Act; and
(f) each of the parties to the professional development agreement has the capacity to meet its financial commitments; and
(g) if an overseas employer that is a party to a professional development agreement with the applicant has previously been required to comply with the immigration laws of Australia — the overseas employer has a satisfactory record of compliance; and
(h) either:
(i) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant.
Note for paragraph (h) The meanings of associated with and adverse information are explained in subregulations 2.57 (2) and (3).
(2) A professional development agreement must meet the following requirements:
(a) the parties to the agreement must include:
(i) a person (the applicant) intending to apply for approval as a professional development sponsor who is:
(A) an Australian organisation that has operated in Australia continuously for a period of 12 months immediately prior to the making of the agreement; or
(B) an Australian organisation that has been approved by the Minister for the purpose of this sub-subparagraph; or
(C) a government agency; and
(ii) an overseas employer of a person intended to be a primary sponsored person;
(b) the applicant under subparagraph (a) (i) must be an Australian organisation or a government agency;
(c) the agreement must specify the person or persons responsible for paying the participant costs of a primary sponsored person;
(d) the agreement must not require a primary sponsored person to pay the costs of the tuition of a professional development program;
(e) the agreement must specify:
(i) particulars of the professional development program to be provided by the professional development sponsor; and
(ii) particulars of any other matter to be provided by the professional development sponsor; and
(iii) the roles of each of the parties to the agreement; and
(iv) the duration of the agreement; and
(v) particulars of the conflict resolution arrangements under the agreement, including arrangements for the mediation of disputes; and
(vi) particulars of any arrangements for the subcontracting of the delivery of any part of the professional development program; and
(vii) particulars of the arrangements for insurance relating to the professional development sponsor; and
(viii) particulars of the arrangements for the recovery of costs if the professional development sponsor, or any other provider of the professional development program, ceases operations for any reason; and
(ix) a description of the characteristics of the person or persons the overseas employer proposes to select as proposed primary sponsored persons, and how the proposed primary sponsored persons will be selected;
(f) if it is intended that a primary sponsored person will pay some of their participation costs — the agreement must contain:
(i) a statement that the proposed primary sponsored person will be expected to meet the costs specified in the agreement; and
(ii) a declaration from the overseas employer that only an employee that the employer is satisfied is able to meet the costs specified in the agreement will be selected as a primary sponsored person;
(g) the agreement must be signed and dated by an authorised representative of each party to the agreement.
(3) A professional development program must meet the following requirements:
(a) the program must be relevant to, and consistent with, the development of the skills of the managers or professionals, or both, that it is proposed will participate in the program;
(b) the program must provide skills and expertise relevant to, and consistent with, the business and business background of a proposed primary sponsored person’s overseas employer;
(c) the duration of the program must not exceed:
(i) 18 months; or
(ii) if the Secretary is satisfied that exceptional circumstances exist that warrant an extension of the period of the program — a longer period approved by the Secretary;
(d) the primary form of the program must be the provision of face-to-face teaching in a classroom or similar environment;
(e) the primary content of the program must not be a practical component;
(f) any practical component of the program:
(i) must not exceed 7 hours in any day and 35 hours in any week; and
(ii) must not adversely affect the Australian labour market; and
(iii) must require or involve the payment of remuneration to a proposed primary sponsored person only by the proposed primary sponsored person’s overseas employer.
2.60A Criterion for approval as a temporary work sponsor
For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a temporary work sponsor is that the Minister is satisfied that:
(a) the applicant has applied for approval as a temporary work sponsor in accordance with the process set out in regulation 2.61; and
(b) the applicant is not already a sponsor of the class for which the applicant is applying; and
(c) either:
(i) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(d) the applicant has the capacity to comply with the sponsorship obligations applicable to a person who is or was a sponsor of the class for which the applicant has applied.
2.60B Criterion for approval as an exchange sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as an exchange sponsor is that the person is:
(a) an Australian organisation that is lawfully operating in Australia; or
(b) a government agency.
2.60C Criterion for approval as a foreign government agency sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a foreign government agency sponsor is that the person is a foreign government agency.
2.60D Criterion for approval as a special program sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a special program sponsor is that:
(a) either:
(i) if the applicant is proposing to conduct a youth exchange program that has been approved by the Secretary — the applicant is an Australian organisation or a government agency; or
(ii) in any other case — the applicant is a community‑based, non-profit Australian organisation, or a government agency; and
(b) if the applicant is an Australian organisation — the applicant is lawfully operating in Australia; and
(c) either:
(i) the applicant is a party to a special program agreement with the Secretary; or
(ii) the special program the applicant is proposing to conduct is either:
(A) the School to School Interchange Program; or
(B) the School Language Assistants Program; and
(d) the applicant is proposing to conduct a special program that meets the following requirements:
(i) the program is a youth exchange program, or has the object of cultural enrichment or community benefits;
(ii) the program has been approved in writing by the Secretary, either:
(A) for the purposes of this sub-subparagraph; or
(B) for the purposes of paragraph 416.222 (b) or (c) of Schedule 2 as in force immediately before the commencement of this regulation.
2.60E Criterion for approval as a visiting academic sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a visiting academic sponsor is that the person:
(a) is an Australian tertiary institution or an Australian research institution; and
(b) is lawfully established in Australia; and
(c) is lawfully operating in Australia.
2.60F Criterion for approval as an entertainment sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as an entertainment sponsor is that the person is:
(a) an Australian organisation that is lawfully operating in Australia; or
(b) a government agency; or
(c) either:
(i) an Australian citizen; or
(ii) an Australian permanent resident; or
(iii) an eligible New Zealand citizen;
who is usually resident in Australia.
2.60G Criterion for approval as a sport sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a sport sponsor is that the person is a sporting organisation that is lawfully operating in Australia.
2.60H Criterion for approval as a domestic worker sponsor
(1) For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a domestic worker sponsor is that the person is an eligible Subclass 457 visa holder.
(2) For subregulation (1), a person is an eligible Subclass 457 visa holder if the person:
(a) holds a Subclass 457 (Business (Long Stay)) visa; and
(b) was granted the Subclass 457 (Business (Long Stay)) visa on the basis of meeting the requirements of subclause 457.223 (2), (4), (7A), (9) or (10) of Schedule 2; and
(c) has been appointed to, or holds the position of:
(i) national managing director; or
(ii) deputy national managing director; or
(iii) state manager;
of an Australian office of a foreign organisation.
2.60I Criterion for approval as a religious worker sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a religious worker sponsor is that the person is a religious institution that is lawfully operating in Australia.
2.60J Criterion for approval as an occupational trainee sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as an occupational trainee sponsor is that the person is:
(a) an Australian organisation that is lawfully operating in Australia; or
(b) a government agency.
2.60K Criterion for approval as a superyacht crew sponsor
For subsection 140E (1) of the Act, and in addition to the criterion set out in regulation 2.60A, the criterion that must be satisfied for the Minister to approve an application by a person for approval as a superyacht crew sponsor is that the person is the captain or owner of a superyacht.
Division 2.14 Application for approval as a sponsor
2.61 Application for approval as a sponsor
(1) For subsection 140F (1) of the Act, a person may apply to the Minister for approval as a sponsor in relation to a class of sponsor in accordance with the process set out in this Division.
Note A party to a work agreement is not required to apply for approval as a sponsor, and is not required to apply for approval as a sponsor in relation to a class of sponsor.
(2) Subject to subregulation (3), a person mentioned in an item of the table must:
(a) make the application in accordance with the approved form mentioned in the item; and
(b) pay the application fee (if any) mentioned in the item.
Item
If the person makes an application for approval as …
the approved form is …
and the application fee is …
1 (a) a standard business sponsor; and
(b) operates a business in Australia
1196S; or
1196 (Internet)
$345 2 (a) a standard business sponsor; and
(b) does not operate a business in Australia
1196S $345 3 (a) a professional development sponsor; and
(b) is a Commonwealth agency
1226 nil 4 (a) a professional development sponsor; and
(b) is not a Commonwealth agency
1226 $1 370 5 a temporary work sponsor (other than a superyacht crew sponsor) 1377 $345 6 a superyacht crew sponsor 1366 nil (3) If:
(a) a person mentioned in the table in subregulation (2) (the applicant) paid a sponsorship fee under regulation 5.38 in relation to an application for approval as a sponsor before 14 September 2009; and
(b) the applicant was approved as a sponsor in relation to the application before 14 September 2009 but no earlier than 1 July 2009; and
(c) no visa application was lodged in relation to sponsorship by the applicant before 14 September 2009;
the application fee for the first application for approval as a sponsor made by the applicant on or after 14 September 2009 is nil.
(4) If a person is applying to be approved as a temporary work sponsor (other than a superyacht crew sponsor), the person must make the application:
(a) by posting the application (with the correct pre-paid postage):
(i) to the address specified by the Minister in an instrument in writing for this subparagraph; or
(ii) if no legislative instrument has been made for subparagraph (i) — to an office of Immigration in Australia; or
(b) by delivering the application by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for this paragraph; or
(c) by faxing the application to the fax number specified by the Minister in an instrument in writing for this paragraph.
(5) For subregulation (4), the Minister may specify different addresses and fax numbers for applications for different classes in relation to which a person may be approved as a sponsor.
(6) If a person is applying to be approved as a superyacht crew sponsor, the person must make the application:
(a) by posting the application (with the correct pre-paid postage):
(i) to the address specified by the Minister in an instrument in writing for this subparagraph; or
(ii) if no legislative instrument has been made for subparagraph (i) — to an office of Immigration in Australia; or
(b) by delivering the application by courier service to the address specified by the Minister in an instrument in writing for this paragraph; or
(c) by faxing the application to the fax number specified by the Minister in an instrument in writing for this paragraph.
2.62 Notice of decision
(1) The Minister must notify an applicant for approval as a sponsor, in writing, of a decision under subsection 140E (1) of the Act:
(a) within a reasonable period after making the decision; and
(b) by attaching a written copy of the approval or refusal; and
(c) if the decision is a refusal — by attaching a statement of reasons for the refusal.
(2) If the application was made using approved form 1196 (Internet), the Minister may provide the notification to the applicant in an electronic form.
Division 2.15 Terms of approval of sponsorship
2.63 Standard business sponsor or temporary work sponsor
(1) For subsection 140G (2) of the Act, a kind of term of an approval as a standard business sponsor or temporary work sponsor is the duration of the approval.
(2) The duration of the approval may be specified:
(a) as a period of time; or
(b) as ending on a particular date; or
(c) as ending on the occurrence of a particular event.
2.64 Professional development sponsor
(1) For subsection 140G (3) of the Act, the terms of approval as a professional development sponsor are prescribed in this regulation.
(2) An approval as a professional development sponsor has effect only in relation to:
(a) the professional development program specified in the application for approval, as varied from time to time by agreement between the professional development sponsor and the Secretary; and
(b) the professional development agreement or agreements specified in the application for approval; and
(c) the overseas employer or employers specified in the application for approval.
(3) An approval as a professional development sponsor ceases on the earlier of:
(a) 3 years after the day on which the approval is granted; and
(b) the day on which the professional development agreement specified in the application for approval ends.
2.64A Special program sponsor
(1) For subsection 140G (3) of the Act, the terms of approval as a special program sponsor are prescribed in this regulation.
(2) An approval as a special program sponsor has effect only in relation to:
(a) the special program specified in the application for approval, as varied from time to time by agreement between the special program sponsor and the Secretary; and
(b) the special program agreement or agreements specified in the application for approval, as varied from time to time by agreement between the special program sponsor and the Secretary; and
(c) the employer or employers specified in the application for approval.
Division 2.16 Variation of terms of approval of sponsorship
2.65 Application
This Division applies to a person who is a standard business sponsor or a temporary work sponsor.
2.66 Process to apply for variation of terms of approval — standard business sponsor
(1) For subsection 140GA (1) of the Act, a person may apply to the Minister for a variation of a term of an approval as a standard business sponsor in accordance with the process set out in this regulation.
(2) The person must make the application in accordance with approved form 1196S or approved form 1196 (Internet).
(3) However, if the person does not operate a business in Australia, the person must make the application in accordance with approved form 1196S.
(4) The application must be accompanied by a fee of $345.
2.66A Process to apply for variation of terms of approval — temporary work sponsor
(1) For subsection 140GA (1) of the Act, a person may apply to the Minister for a variation of a term of an approval as a temporary work sponsor (other than a superyacht crew sponsor) by making an application in accordance with approved form 1377.
(2) The application mentioned in subregulation (1) must:
(a) be accompanied by a fee of $345; and
(b) be made:
(i) by posting the application (with the correct pre-paid postage):
(A) to the address specified by the Minister in an instrument in writing for this sub-subparagraph; or
(B) if no legislative instrument has been made for sub-subparagraph (A) — to an office of Immigration in Australia; or
(ii) by delivering the application by courier service, or otherwise by hand, to the address specified by the Minister in an instrument in writing for this subparagraph; or
(iii) by faxing the application to the fax number specified by the Minister in an instrument in writing for this subparagraph.
(3) For paragraph (2) (b), the Minister may specify different addresses and fax numbers for applications for different classes in relation to which a person may be approved as a sponsor.
(4) For subsection 140GA (1) of the Act, a person may apply to the Minister for a variation of a term of an approval as a superyacht crew sponsor by making an application in accordance with approved form 1366.
(5) The application fee for an application mentioned in subregulation (4) is nil.
(6) An application mentioned in subregulation (4) must be made:
(a) by posting the application (with the correct pre-paid postage):
(i) to the address specified by the Minister in an instrument in writing for this subparagraph; or
(ii) if no legislative instrument has been made for subparagraph (i) — to an office of Immigration in Australia; or
(b) by delivering the application by courier service to the address specified by the Minister in an instrument in writing for this paragraph; or
(c) by faxing the application to the fax number specified by the Minister in an instrument in writing for this paragraph.
2.67 Terms of approval that may be varied
For paragraph 140GA (2) (a) of the Act, a term of approval as a standard business sponsor or a temporary work sponsor that may be varied is the duration of the approval.
2.68 Criteria for variation of terms of approval — standard business sponsor
For paragraph 140GA (2) (b) of the Act, the criterion that must be satisfied for the Minister to approve an application for a variation of a term of approval as a standard business sponsor is that the Minister is satisfied that:
(a) the applicant has applied for the variation in accordance with the process set out in regulation 2.66; and
(b) the applicant is a standard business sponsor; and
(c) the approval the applicant is seeking to vary was granted on or after 14 September 2009; and
(d) the applicant is lawfully operating a business (whether in or outside Australia); and
(e) if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more —the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and
(f) if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument in writing made for paragraph (e); and
(g) if the applicant is lawfully operating a business in Australia —the applicant has attested in writing that the applicant has a strong record of, or a demonstrated commitment to:
(i) employing local labour; and
(ii) non-discriminatory employment practices; and
(h) either:
(i) there is no adverse information known to the Minister about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to the Minister about the applicant or a person associated with the applicant; and
Note for paragraph (h) The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(i) if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia — the applicant is seeking to vary the terms of approval as a standard business sponsor in relation to a holder of, or an applicant or a proposed applicant (the visa applicant) for, a Subclass 457 (Business (Long Stay)) visa, and the applicant intends for the visa holder or visa applicant to:
(i) establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii) fulfil, or assist in fulfilling, a contractual obligation of the applicant.
2.68A Criteria for variation of terms of approval — temporary work sponsor
For paragraph 140GA (2) (b) of the Act, for the Minister to approve an application by a person (the applicant) for a variation of a term of approval as a temporary work sponsor, the criteria that must be satisfied are:
(a) that the applicant satisfies the criteria for approval as a temporary work sponsor set out in paragraphs 2.60A (c) and (d); and
(b) that the applicant satisfies the criteria for approval (set out in Division 2.13) that applies to the class of sponsor in relation to which the application for the variation of a term of approval applies; and
(c) that the applicant has applied for the variation in accordance with the process set out in regulation 2.66A; and
(d) that:
(i) the applicant is applying to vary the terms of approval of a class of sponsor; and
(ii) the applicant is in that class.
2.69 Notice of decision
(1) The Minister must notify an applicant for a variation of a term of an approval, in writing, of a decision under subsection 140GA (2) of the Act:
(a) within a reasonable period after making the decision; and
(b) by attaching a written copy of the decision to vary or not to vary the term of the approval; and
(c) by if the decision is not to vary the term of the approval — attaching a statement of reasons for the decision.
(2) If the application was made using approved form 1196 (Internet), the Minister may provide the notification to the applicant in an electronic form.
Division 2.17 Nominations
2.70 Application
This Division applies to a person who is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister); or
(c) a temporary work sponsor (other than a foreign government agency sponsor, a special program sponsor or a superyacht crew sponsor).
2.72 Criteria for approval of nomination — Subclass 457 (Business (Long Stay)) visa
(1) This regulation applies to a person who is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.
(2) For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3) The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4) The Minister is satisfied that the person is:
(a) a standard business sponsor; or
taking into account the applicant’s work rights during the period of the applicant’s stay in Australia.
423.323A The applicant has given to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
[119] Schedule 2, after clause 423.611
insert
423.611A If the applicant meets the primary or secondary criteria, condition 8501.
[120] Schedule 2, clause 423.612
omit
8501,
[121] Schedule 2, clause 427.211
substitute
427.211 If the applicant is in the migration zone at the time of application:
(a) the applicant holds a substantive visa that is not:
(i) a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(ii) a Subclass 771 (Transit) visa; or
(iii) a Subclass 995 (Diplomatic (Temporary)) visa; or
(iv) a special purpose visa; or
(b) the applicant:
(i) does not hold a substantive visa; and
(ii) the last substantive visa held by the applicant was not a visa mentioned in paragraph (a); and
(iii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.
[122] Schedule 2, clauses 427.221 to 427.225
substitute
427.222 The Minister is satisfied that:
(a) the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act; and
(b) the nomination was made by a person who was a domestic worker sponsor at the time the nomination was approved; and
(c) the approval of the nomination has not ceased under regulation 2.75A; and
(d) the applicant seeks to enter or remain in Australia to undertake full-time domestic duties in the private household of the domestic worker sponsor; and
(e) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
427.225A The Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to undertake the duties for which the applicant was identified in the nomination.
427.225B The Minister is satisfied that the applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia.
[123] Schedule 2, clause 427.226
omit
[124] Schedule 2, after clause 427.228
insert
427.228A The applicant has given to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
[125] Schedule 2, clause 427.231
omit
[126] Schedule 2, clause 427.233
omit
[127] Schedule 2, clauses 427.322 and 427.323
substitute
427.322 The Minister is satisfied that the domestic worker sponsor who has most recently identified the member of the family unit who satisfies the primary criteria in a nomination has agreed in writing to be the domestic worker sponsor in relation to the applicant.
427.323 The Minister is satisfied that the applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
taking into account the applicant’s work rights during the period of the applicant’s stay in Australia.
427.323A The applicant has given to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
[128] Schedule 2, after clause 427.611
insert
427.611A If the applicant meets the primary or secondary criteria, condition 8501.
[129] Schedule 2, clause 427.612
omit
8501,
[130] Schedule 2, clause 428.211
substitute
428.211 If the applicant is in the migration zone at the time of application:
(a) the applicant holds a substantive visa that is not:
(i) a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(ii) a Subclass 771 (Transit) visa; or
(iii) a Subclass 995 (Diplomatic (Temporary)) visa; or
(iv) a special purpose visa; or
(b) the applicant:
(i) does not hold a substantive visa; and
(ii) the last substantive visa held by the applicant was not a visa mentioned in paragraph (a); and
(iii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.
[131] Schedule 2, clauses 428.221 to 428.223
substitute
428.222 The Minister is satisfied that:
(a) the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act; and
(b) the nomination was made by a person who was a religious worker sponsor or a party to a work agreement of a kind mentioned in subregulation 2.76 (4) at the time the nomination was approved; and
(c) the approval of the nomination has not ceased under regulation 2.75A; and
(d) the applicant seeks to enter or remain in Australia to be engaged on a full-time basis to participate in work or an activity:
(i) that is predominately non-profit in nature; and
(ii) that directly serves the religious objectives of the religious institution that is the religious worker sponsor; and
(e) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
428.222B The Minister is satisfied that the applicant genuinely intends to stay temporarily in Australia to carry out the activity for which the applicant was identified in the nomination.
[132] Schedule 2, paragraph 428.225 (b)
omit
4019.
insert
4019; and
[133] Schedule 2, after paragraph 428.225 (b)
insert
(c) if the applicant has not turned 18 — satisfies public interest criteria 4012, 4017 and 4018.
[134] Schedule 2, after clause 428.225
insert
428.225A The Minister is satisfied that the applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
taking into account the applicant’s work rights during the period of the applicant’s intended stay in Australia.
428.225B The applicant has given to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
[135] Schedule 2, clause 428.322
substitute
428.322 The Minister is satisfied that the religious worker sponsor who has most recently identified the member of the family unit who satisfies the primary criteria in a nomination has agreed in writing to be the religious worker sponsor in relation to the applicant.
428.322A The Minister is satisfied that the applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
taking into account the applicant’s work rights during the period of the applicant’s stay in Australia.
428.322B The applicant has given to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.
[136] Schedule 2, after clause 428.611
insert
428.611A If the applicant meets the primary or secondary criteria, condition 8501.
[137] Schedule 2, clause 428.612
omit
8501,
[138] Schedule 2, clauses 442.221 to 442.223
substitute
442.222 (1) The Minister is satisfied that:
(a) the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act, unless the occupational training is to be provided to the applicant by the Commonwealth; and
(b) if the occupational training is to be provided to the applicant by the Commonwealth — the occupational trainee sponsor has agreed in writing to be the occupational trainee sponsor in relation to the applicant; and
(c) the nomination mentioned in paragraph (a) was made by a person who was an occupational trainee sponsor at the time the nomination was approved; and
(d) the approval of the nomination mentioned in paragraph (a) has not ceased under regulation 2.75A; and
(e) the applicant seeks to enter or remain in Australia to undertake the occupational training; and
(f) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
(2) For subclause (1), occupational training to be provided by the Commonwealth includes occupational training to be provided by:
(a) a body corporate incorporated for a public purpose under an Act or regulations made under an Act; or
(b) an authority or body (other than a body corporate) established for a public purpose under an Act or regulations made under an Act.
442.223 The Minister is satisfied that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.
[139] Schedule 2, clause 442.230
omit
[140] Schedule 2, clause 442.322
substitute
442.322 The Minister is satisfied that the applicant has:
(a) adequate means to support himself or herself; or
(b) access to adequate means to support himself or herself;
taking into account the applicant’s work rights during the period of the applicant’s stay in Australia.
442.321A The Minister is satisfied that the occupational trainee sponsor of the member of the family unit who satisfies the primary criteria has agreed in writing to be the occupational trainee sponsor in relation to the applicant.
[141] Schedule 2, clause 470.111
omit
employed,
[142] Schedule 2, clause 470.111
omit
1.20M
insert
2.57
[143] Schedule 2, clause 470.111, note
substitute
Note professional development sponsor is defined in regulation 1.03.
[144] Schedule 2, clause 470.112
omit
applicable agreement
insert
professional development agreement
[145] Schedule 2, clause 470.112
omit
approved
[146] Schedule 2, clause 470.222
substitute
470.222 The applicant nominated a professional development sponsor as the applicant’s sponsor in the application for the visa.
470.222A The professional development sponsor nominated by the applicant:
(a) has not ceased to be an approved sponsor; and
(b) has not withdrawn the agreement, in writing, to be a professional development sponsor in relation to the applicant; and
(c) is not barred from sponsoring the applicant under paragraph 140M (1) (c) of the Act.
Note approved sponsor is defined in subsection 5 (1) of the Act.
[147] Schedule 2, clause 470.223
before
sponsor
insert
professional development
[148] Schedule 2, clause 470.225
omit
[149] Schedule 2, clause 470.226
substitute
470.226 The applicant:
(a) has an overseas employer; and
(b) is in a managerial or professional position in relation to the overseas employer.
[150] Schedule 2, clause 470.227
omit
applicable agreement
insert
professional development agreement
[151] Schedule 2, clause 470.228
omit
[152] Schedule 2, clause 470.229
omit
approved
[153] Schedule 2, clause 470.232
omit
approved
[154] Schedule 2, clause 470.234
omit
applicable agreement
insert
professional development agreement
[155] Schedule 2, clause 488.222
substitute
488.222 The Minister is satisfied that:
(a) a superyacht crew sponsor has agreed to be the superyacht crew sponsor in relation to the applicant; and
(b) the superyacht crew sponsor is not barred from sponsoring the applicant under paragraph 140M (1) (c) of the Act; and
(c) either:
(i) there is no adverse information known to Immigration about the superyacht crew sponsor mentioned in paragraph (a) or a person associated with that superyacht crew sponsor; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the superyacht crew sponsor mentioned in paragraph (a) or a person associated with that superyacht crew sponsor.
[156] Schedule 2, subparagraph 571.223 (2) (b) (i)
substitute
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
[157] Schedule 2, subparagraph 572.223 (2) (b) (i)
substitute
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
[158] Schedule 2, subparagraph 573.223 (2) (b) (i)
substitute
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
[159] Schedule 2, subparagraph 574.223 (2) (b) (i)
substitute
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
[160] Schedule 8, condition 8107
substitute
8107 (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a) cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
(2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:
(a) cease to undertake the activity in relation to which the visa was granted; or
(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
(3) If the visa is a Subclass 457 (Business (Long Stay)) visa:
(a) the holder must work only:
(i) in the occupation listed in the most recently approved nomination for the holder; and
(ii) for:
(A) the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination; or
(B) an associated entity of the sponsor;
unless:
(iii) the holder’s occupation is specified in an instrument in writing for subparagraph 2.72 (10) (d) (ii) or (iii); or
(iv) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 28 consecutive days.
(4) If:
(a) the visa is:
(i) a Subclass 411 (Exchange) visa; or
(ii) a Subclass 419 (Visiting Academic) visa; or
(iii) a Subclass 420 (Entertainment) visa; or
(iv) a Subclass 421 (Sport) visa; or
(v) a Subclass 423 (Media and Film Staff) visa; or
(vi) a Subclass 427 (Domestic Worker (Temporary) — Executive) visa; or
(vii) a Subclass 428 (Religious Worker) visa; or
(viii) a Subclass 442 (Occupational Trainee) visa; and
(b) in the case of a holder of a Subclass 442 (Occupational Trainee) visa — the occupational training is not provided to the holder by the Commonwealth;
the holder must not:
(c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A (7) (a) in the most recent nomination in which the holder is identified.
[161] Schedule 10, after Form 3
insert
Form 4 Identity card
(regulation 2.102B)
COMMONWEALTH OF AUSTRALIA
Migration Act 1958
INSPECTOR’S IDENTITY CARD
For subsection 140W (1) of the Migration Act 1958, I, [name], Minister for Immigration and Citizenship [or a delegate of the Minister for Immigration and Citizenship], certify that [name] whose photograph and signature appear on this card is an inspector for the purposes of the Act.
Dated [date]
[signature of Minister or delegate]
[photograph]
[signature of inspector]
0
0
0