Migration Amendment Regulations 2010 (No. 2) (Cth)

Migration Amendment Regulations 2010 (No. 2)¹

Select Legislative Instrument 2010 No. 50

I, QUENTIN BRYCE, 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 24 March 2010

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

CHRIS EVANS

Minister for Immigration and Citizenship

Contents

1Name of Regulations 2

2Commencement 2

3Amendment of Migration Regulations 1994 — Schedule 1 2

4Amendment of Migration Regulations 1994 — Schedule 2 2

Schedule 1Amendments — sponsors of concern 3

Schedule 2Amendments — student integrity measures 9

Name of Regulations

These Regulations are the Migration Amendment Regulations 2010 (No. 2).

Commencement

These Regulations commence on 27 March 2010.

Amendment of Migration Regulations 1994 — Schedule 1

(1)Schedule 1 amends the Migration Regulations 1994.

(2)The amendments made by Schedule 1 apply in relation to an application for a visa made on or after 27 March 2010.

Amendment of Migration Regulations 1994 — Schedule 2

(1)Schedule 2 amends the Migration Regulations 1994.

(2)The amendments made by:

(a)items [1] to [12] and [14] to [30] of Schedule 2 apply in relation to an application for a student visa made on or after 27 March 2010; and

(b)item [13] of Schedule 2 apply in relation to a student visa, if the Minister is considering cancelling the visa under section 116 of the Migration Act 1958 on or after 27 March 2010.

Schedule 1 Amendments — sponsors of concern

(regulation 3)

[1] After regulation 1.20KA

insert

1.20KBLimitation on approval of sponsorship — child, partner and prospective marriage visas

(1)This regulation applies in relation to:

(a)an application for any of the following visas:

(i)a Child (Migrant) (Class AH) visa;

(ii)a Child (Residence) (Class BT) visa;

(iii)an Extended Eligibility (Temporary) (Class TK) visa;

(iv)a Partner (Temporary) (Class UK) visa;

(v)a Prospective Marriage (Temporary) (Class TO) visa;

(vi)a Partner (Provisional) (Class UF) visa;

if the primary applicant or secondary applicant is under 18 at the time of the application; and

(b)an application for the approval of a sponsorship in relation to that application for a visa.

Sponsor charged with registrable offence

(2)If the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:

(a)none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or

(b)the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.

Sponsor convicted of registrable offence

(3)Subject to subregulations (4) and (5), if the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:

(a)none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or

(b)the conviction has been quashed or otherwise set aside.

(4)Despite subregulation (3), the Minister may decide to approve the sponsorship if:

(a)the sponsor completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and

(b)the sponsor has not been charged with a registrable offence since the sponsor completed that sentence; and

(c)there are compelling circumstances affecting the sponsor or the applicant.

(5)Despite subregulation (3), the Minister may decide to approve the sponsorship if:

(a)the sponsor completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and

(b)if the sponsor has been charged with a registrable offence since the sponsor completed that sentence — the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction; and

(c)there are compelling circumstances affecting the sponsor or the applicant.

(6)Subregulations (7) to (10) do not apply in relation to an application for any of the following visas:

(a)a Partner (Temporary) (Class UK) visa;

(b)a Prospective Marriage (Temporary) (Class TO) visa;

(c)a Partner (Provisional) (Class UF) visa.

Spouse or de facto partner charged with registrable offence

(7)If the spouse or de facto partner of the sponsor has been charged with a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:

(a)none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or

(b)the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction.

Spouse or de facto partner convicted of registrable offence

(8)Subject to subregulations (9) and (10), if the spouse or de facto partner of the sponsor has been convicted of a registrable offence, the Minister must refuse to approve the sponsorship of all of the applicants for the visa unless:

(a)none of the applicants is under 18 at the time of the decision on the application for approval of the sponsorship; or

(b)the conviction has been quashed or otherwise set aside.

(9)Despite subregulation (8), the Minister may decide to approve the sponsorship if:

(a)the spouse or de facto partner completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and

(b)the spouse or de facto partner has not been charged with a registrable offence since the sponsor completed that sentence; and

(c)there are compelling circumstances affecting the sponsor or the applicant.

Despite subregulation (8), the Minister may decide to approve the sponsorship if:

(a)the spouse or de facto partner completed the sentence imposed for the registrable offence (including any period of release under recognisance, parole, or licence) more than 5 years before the date of the application for approval of the sponsorship; and

(b)if the spouse or de facto partner has been charged with a registrable offence since the spouse or de facto partner completed that sentence — the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction; and

(c)there are compelling circumstances affecting the sponsor or the applicant.

Evidence of charge or conviction

To determine whether a sponsor, or the spouse or de facto partner of a sponsor, has been charged with, or convicted of, a registrable offence, the Minister may request the sponsor, or the spouse or de facto partner of the sponsor, to provide a police check from:

(a)a jurisdiction in Australia specified in the request; or

(b)a country, specified in the request, in which the sponsor or the spouse or de facto partner has lived for a period, or a total period, of at least 12 months.

In addition to other reasons set out in this regulation for refusing to approve a sponsorship, the Minister may refuse to approve the sponsorship of all applicants for a visa if:

(a)the Minister has requested a police check for the sponsor or the sponsor’s spouse or de facto partner; and

(b)the sponsor or the sponsor’s spouse or de facto partner does not provide the police check within a reasonable time.

In this regulation:

primary applicant, for a visa, means the applicant seeking to satisfy the primary criteria for the visa.

registrable offence means any of the following:

(a)an offence that is a registrable offence within the meaning of any of the following Acts:

(i)the Child Protection (Offenders Registration) Act 2000 (NSW);

(ii)the Sex Offenders Registration Act 2004 (Vic);

(iii)the Child Sex Offenders Registration Act 2006 (SA);

(iv)the Crimes (Child Sex Offenders) Act 2005 (ACT);

(b)an offence that would be a registrable offence under paragraph (a) if it were committed in a jurisdiction mentioned in that paragraph;

(c)an offence that is a reportable offence within the meaning of any of the following Acts:

(i)the Child Protection (Offender Reporting) Act 2004 (Qld);

(ii)the Community Protection (Offender Reporting) Act 2004 (WA);

(iii)the Community Protection (Offender Reporting) Act 2005 (Tas);

(iv)the Child Protection (Offender Reporting and Registration) Act (NT);

(d)an offence that would be a reportable offence under paragraph (c) if it were committed in a jurisdiction mentioned in that paragraph.

secondary applicant, for a visa, means an applicant seeking to satisfy the secondary criteria for the visa in relation to the primary applicant.

[2] Schedule 2, after clauses 101.222, 102.222 and 117.222

insert

Note Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.

[3] Schedule 2, clauses 300.222 and 309.222, note

substitute

Note Regulations 1.20J, 1.20KA and 1.20KB limit the Minister’s discretion to approve sponsorships.

[4] Schedule 2, after clauses 445.224 and 802.226

insert

Note Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.

[5] Schedule 2, clause 820.221A, note

substitute

Note Regulations 1.20J, 1.20KA and 1.20KB limit the Minister’s discretion to approve sponsorships.

[6] Schedule 2, after clause 837.226

insert

Note Regulation 1.20KB limits the Minister’s discretion to approve sponsorships.

Schedule 2 Amendments — student integrity measures

(regulation 4)

[1] Regulation 1.03, definition of assessment level

substitute

assessment level, for a student visa, means the level of assessment (being level 1, 2, 3, 4, or 5) specified for a kind of eligible passport for the student visa under regulation 1.41.

[2] Regulation 1.03, definition of education sector

omit

[3] Regulation 1.03, after definition of eligible New Zealand citizen

insert

eligible passport has the meaning given by regulation 1.40.

[4] Regulation 1.03, after definition of guest of Government

insert

highest assessment level, for an applicant for a student visa, means:

(a)if the applicant proposes to undertake a single course of study that is a registered course — the assessment level for that course of study; and

(b)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that do not include an ELICOS — the assessment level for those courses which is the highest number from 1 to 5; and

(c)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that include an ELICOS — the assessment level for those courses which is the highest number from 1 to 5, not including the ELICOS course.

[5] Regulation 1.03, after definition of relevant assessing authority

insert

relevant course of study, for a subclass of student visa, means a type of course for the subclass of student visa that the Minister has specified in a legislative instrument made under regulation 1.40A.

[6] Regulation 1.03, definition of student visa

substitute

student visa means any of the following subclasses of visa:

(a)a Subclass 570 (Independent ELICOS Sector) visa;

(b)a Subclass 571 (Schools Sector) visa;

(c)a Subclass 572 (Vocational Education and Training Sector) visa;

(d)a Subclass 573 (Higher Education Sector) visa;

(e)a Subclass 574 (Postgraduate Research Sector) visa;

(f)a Subclass 575 (Non-Award Sector) visa;

(g)a Subclass 576 (AusAID or Defence Sector) visa.

[7] Subregulation 1.40 (2)

after

is a registered course

insert

or an occupational trainee has undertaken a course of study that is a registered course

[8] Paragraph 1.40 (3) (a)

after

registered courses

insert

or an occupational trainee has undertaken two or more courses of study that are registered courses

[9] Regulation 1.40A, heading

substitute

1.40ACourses to be specified by Minister

[10] Regulation 1.40A

omit

Gazette Notice

insert

an instrument in writing

[11] Subregulation 1.42 (1)

substitute

(1)An applicant for a student visa who seeks to satisfy the primary criteria is subject to the highest assessment level at the time of application for the relevant course of study for the subclass of student visa.

[12] Subregulation 1.44 (1)

substitute

(1)An applicant for a student visa who seeks to satisfy the primary criteria must give evidence in accordance with the requirements set out in Schedule 5A for the highest assessment level for the relevant course of study for the subclass of student visa.

[13] After subregulation 2.43 (1B)

insert

(1C)For subsection 116 (1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116 (1) (fa) of the Act.

(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

(a)because of the conduct of the holder; or

(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

[14] Schedule 2, paragraph 570.227 (b)

substitute

(b)subject to clause 570.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[15] Schedule 2, after clause 570.227

insert

570.227AFor paragraph 570.227 (b), the highest assessment level does not include assessment level 1.

[16] Schedule 2, paragraph 571.223 (2) (a)

substitute

(a)for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; or

[17] Schedule 2, paragraph 571.227 (b)

substitute

(b)subject to clause 571.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[18] Schedule 2, after clause 571.227

insert

571.227AFor paragraph 571.227 (b), the highest assessment level does not include assessment level 1.

[19] Schedule 2, paragraph 572.223 (2) (a)

substitute

(a)for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; or

[20] Schedule 2, paragraph 572.227 (b)

substitute

(b)subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[21] Schedule 2, after clause 572.227

insert

572.227AFor paragraph 572.227 (b), the highest assessment level does not include assessment level 1.

[22] Schedule 2, paragraph 573.223 (2) (a)

substitute

(a)for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; or

[23] Schedule 2, paragraph 573.227 (b)

substitute

(b)subject to clause 573.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[24] Schedule 2, after clause 573.227

insert

573.227AFor paragraph 573.227 (b), the highest assessment level does not include assessment level 1.

[25] Schedule 2, paragraph 574.223 (2) (a)

substitute

(a)for an applicant who is not a person designated under regulation 2.07AO, the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; or

[26] Schedule 2, paragraph 574.227 (b)

substitute

(b)subject to clause 574.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[27] Schedule 2, after clause 574.227

insert

574.227AFor paragraph 574.227 (b), the highest assessment level does not include assessment level 1.

[28] Schedule 2, paragraph 575.223 (2) (a)

substitute

(a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

[29] Schedule 2, paragraph 575.227 (b)

substitute

(b)subject to clause 575.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

[30] Schedule 2, after clause 575.227

insert

575.227AFor paragraph 575.227 (b), the highest assessment level does not include assessment level 1.

Note

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