Migration Regulations (Amendment) (Cth)

Statutory Rules 1998No. 36 1

__________________

Migration Regulations2 (Amendment)

I, The 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 18 March 1998.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

____________

1.   Commencement

1.1   These Regulations are taken to have commenced on 1 October 1997.

2.   Amendment

2.1   The Migration Regulations are amended as set out in these Regulations.

3.   Schedule 1 (Classes of visas)

3.1   Paragraph 1127A (3) (d):

Omit the paragraph, substitute:

“(d) Application by a person (other than the holder of a Subclass 450 (Resolution of Status—Family Member (Temporary)) visa) who claims to be:

• (i)

  a member of the immediate family of a person (‘the principal applicant’) who is an applicant for a Resolution of Status (Residence) (Class BL) visa; or

• (ii)

  a dependent child of the spouse of the principal applicant, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visa;

 

may be made at the same time and place as, and combined with, the application by the principal applicant.”.

 

3.2   Paragraph 1216A (3) (f):

Omit the paragraph, substitute:

“(f) In the case of an application mentioned in paragraph (a) by an applicant who claims to be:

• (i)

  a member of the immediate family of a person (‘the principal person’) who is also making an application mentioned in that paragraph; or

• (ii)

  a dependent child of the spouse of the principal person, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) or Resolution of Status (Residence) (Class BL) visa;

 

the application may be made at the same time and place as, and combined with, the application by the principal person.”.

 

3.3   Subparagraph 1216A (3) (g) (i):

Omit the subparagraph, substitute:

• “(i)

  either:

  • (A)

    a member of the immediate family of the sponsor; or

  • (B)

    a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa; and”. 

3.4   Paragraph 1216A (3) (h):

Omit “both applicants claim”, substitute “each applicant claims”.

 

3.5   Subparagraph 1216A (3) (h) (i):

Omit the subparagraph, substitute:

• “(i)

  identified, in the application of a person (‘the sponsor’) who has made a valid application mentioned in paragraph (a), as:

  • (A)

    a member of the immediate family of the sponsor; or

  • (B)

    a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa; and”. 

4.   Schedule 2, Part 450 (Resolution of Status—Family Member (Temporary))

Note   The Note following the Division 450.1 heading should be replaced by the following note:

“[NOTE:  ‘dependent child’ is defined in regulation 1.03, ‘member of the family unit’ in regulation 1.12, and ‘member of the immediate family’ in regulation 1.12AA. There are no interpretation provisions specific to this Part.]”. 

4.1   Paragraph 450.211 (a):

Omit the paragraph, substitute:

• “(a)

  is either:

  • (i)

    a member of the immediate family of a person (‘the sponsor’) who:

    • (A)

      has made an application for a Resolution of Status (Temporary) (Class UH) visa mentioned in paragraph 1216A (3) (a) of Schedule 1; and

    • (B)

      on the basis of the information provided in that application, appears to satisfy the criteria in Subdivision 850.21; or

  • (ii)

    a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa; and”. 

4.2   Clauses 450.212 and 450.213:

Omit the clauses, substitute:

“450.212 The applicant:

• (a)

  was, on 13 June 1997, a member of the immediate family of the sponsor; or

• (b)

  became a dependent child of the sponsorafter that date; or

• (c)

  was, on 13 June 1997, a dependent child of the spouse of the sponsor. 

“450.213 In the application, by the sponsor, that is mentioned in sub-subparagraph 450.211 (a) (i) (A), the applicant is:

• (a)

  identified as:

  • (i)

    a member of the immediate family of the sponsor, except if the applicant became a dependent child of the sponsorafter that date; or

  • (ii)

    a dependent child of the spouse of the sponsor; and

• (b)

  sponsored by the sponsor.”. 

5.   Schedule 2, Part 850 (Resolution of Status (Temporary))

Note 1   The Note following the Division 850.1 heading should be replaced by the following note:

“[NOTE:  ‘dependent child’ is defined in regulation 1.03, ‘member of the family unit’ in regulation 1.12, and ‘member of the immediate family’ in regulation 1.12AA. There are no interpretation provisions specific to this Part.]”.

Note 2   The Note following the Division 850.2 heading should be replaced by the following note:

“[NOTE:  The primary criteria must be satisfied by at least 1 person. The members of the immediate family of the person who satisfies the primary criteria and the dependent children of the spouse of that person, being members or children who are applicants for a visa of this Subclass, need satisfy only the secondary criteria.]”. 

5.1   Clause 850.222:

After “of the applicant”, insert “, and each dependent child of the spouse of the applicant,”.

 

Note   The Note following the Division 850.3 heading should be replaced by the following note:

“[NOTE:  If an applicant satisfies the primary criteria, a member of the immediate family of the applicant, or a dependent child of the spouse of that applicant, who is an applicant for a visa of this Subclass, is also eligible for the grant of the visa if the member or child satisfies the secondary criteria.]”.

5.2   Clauses 850.311 and 850.312:

Omit the clauses, substitute:

“850.311 The applicant is:

• (a)

  a member of the immediate family of a person (‘the principal person’) who:

  • (i)

    has made an application for a Resolution of Status (Temporary) (Class UH) visa mentioned in paragraph 1216A (3) (a) of Schedule 1; and

  • (ii)

    on the basis of the information provided in that application, appears to satisfy the criteria in Subdivision 850.21; or

• (b)

  a dependent child of the spouse of the principal person, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa.

“850.312 The applicant:

• (a)

  was, on 13 June 1997, a member of the immediate family of the principal person; or

• (b)

  became a dependent child of the principal person after that date; or

• (c)

  was, on 13 June 1997, a dependent child of the spouse of the principal person.”. 

5.3   Subclause 850.321 (1):

Omit “subclause (2) or (3).”, substitute “subclause (2), (3), (4) or (5).”.

5.4   Clause 850.321:

After subclause 850.321 (3), insert:

“(4)

The applicant is a dependent child of the spouse of a person who, having satisfied the primary criteria, is the holder of a Subclass 850 visa.

“(5)

If:

• (a)

  at the time of the application, the applicant was a dependent child of the spouse of a person (‘the principal holder’) who, having satisfied the primary criteria, is the holder of a Subclass 850 visa; and

• (b)

  the applicant would meet the requirements of subclause (4) except that the spouse of the principal holder has died;

the Minister is satisfied that:

• (c)

  the applicant would have continued to be a dependent child of the spouse of the principal holder if the spouse had not died; and

• (d)

  either:

  • (i)

    the spouse relationship between the spouse and the principal holder would have continued; or

  • (ii)

    if the spouse relationship between the spouse and the principal holder had ceased before the death of the spouse—the principal holder:

    • (A)

      has been granted joint custody or access by a court; or

    • (B)

      has a residence order or contact order made under the Family Law Act 1975; or

    • (C)

      has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation;

  • in relation to the applicant.”.  

6.   Schedule 2, Part 851 (Resolution of Status)

Note 1   The Note following the Division 851.1 heading should be replaced by the following note:

“[NOTE:  ‘dependent child’ is defined in regulation 1.03, ‘member of the family unit’ in regulation 1.12, and ‘member of the immediate family’ in regulation 1.12AA. There are no interpretation provisions specific to this Part.]”.

Note 2   The Note following the Division 851.2 heading should be replaced by the following note:

“[NOTE:  The primary criteria must be satisfied by at least 1 person. The members of the immediate family of the person who satisfies the primary criteria and the dependent children of the spouse of that person, being members or children who are applicants for a visa of this Subclass, need satisfy only the secondary criteria.]”.

6.1   Clause 851.224:

After “of the applicant”, insert “, and each dependent child of the spouse of the applicant,”.

 

Note   The Note following the Division 851.3 heading should be replaced by the following note:

“[NOTE:  If an applicant satisfies the primary criteria, a member of the immediate family of the applicant, or a dependent child of the spouse of that applicant, who is an applicant for a visa of this Subclass, is also eligible for the grant of the visa if the member or child satisfies the secondary criteria.]”.

6.2   Subclause 851.321 (1):

Omit “(6) or (7).”, substitute “(6), (7), (8), (9), (10), (11), (12) or (13).”.

6.3   Paragraph 851.321 (7) (a):

Omit “to the person of whose immediate family the applicant is a member; and”, substitute “to:

• (i)

  the person of whose immediate family the applicant is a member; or

• (ii)

  the person of whose family unit the applicant is a member; and”. 

6.4   Subclause 851.321 (8):

Omit the subclause, substitute:

“(8)

An applicant meets the requirements of this subclause if:

• (a)

  the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

• (b)

  at the time of the application, the applicant was a dependent child of a person who:

  • (i)

    sponsored the applicant as mentioned in clause 450.211; or

  • (ii)

    with whom the applicant has made (or is taken by regulation 2.08B to have made) a combined application for a Subclass 851 visa; and

• (c)

  the applicant would meet the requirements of subclause (2) or (3) except that:

  • (i)

    the applicant has ceased to be a dependent child of the person because the applicant has turned 18; and

  • (ii)

    the person who would have satisfied the primary criteria has died; and

• (d)

  the Minister is satisfied that the applicant has maintained close business, cultural or personal ties in Australia. 

“(9)

An applicant meets the requirements of this subclause if the applicant is a person who:

• (a)

  is the holder of a Subclass 450 visa; and

• (b)

  is a dependent child, or a dependent child of a dependent child, of the spouse of a person who:

  • (i)

    sponsored the applicant as mentioned in clause 450.211; and

  • (ii)

    having satisfied the primary criteria, is the holder of a Subclass 851 visa. 

“(10)

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

• (i)

  the holder of a Subclass 850 visa; and

• (ii)

  a dependent child, or a dependent child of a dependent child, of the spouse of a person with whom the applicant has made a combined application for a Subclass 851 visa; and

• (b)

  that other person, having satisfied the primary criteria, is the holder of a Subclass 851 visa.

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

• (a)

  the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

• (b)

  at the time of the application, the applicant was a dependent child, or a dependent child of a dependent child, of the spouse of a person (‘the principal holder’) who, having satisfied the primary criteria, is the holder of a Subclass 851 visa; and

• (c)

  either the principal holder:

  • (i)

    sponsored the applicant as mentioned in clause 450.211; or

  • (ii)

    is a person with whom the applicant has made a combined application for a Subclass 851 visa; and

• (d)

  the applicant would meet the requirements of subclause (9) or (10) except that:

  • (i)

    the applicant has ceased to be a dependent child of the spouse of the principal holder; or

  • (ii)

    the person of whom the applicant was a dependent child at the time of the application has ceased to be a dependent child of the spouse of the principal holder; and

• (e)

  if the applicant or the person of whom the applicant was a dependent child ceased to be a dependent child of the spouse of the principal holder because the spouse has died—the Minister is satisfied that:

  • (i)

    either:

    • (A)

      the applicant would have continued to be a dependent child of the spouse of the principal holder if the spouse had not died; or

    • (B)

      the applicant is a dependent child of a person who would have continued to be a dependent child of the spouse of the principal holder if the spouse had not died; and

  • (ii)

    either:

    • (A)

      the spouse relationship between the spouse and the principal holder would have continued; or

    • (B)

      if the spouse relationship between the spouse and the principal holder had ceased before the death of the spouse—the principal holder:

     (I) has been granted joint custody or access

     by a court; or

     (II) has a residence order or contact order

     made under the Family Law Act 1975; or

     (III) has an obligation under a child

     maintenance order made under the Family

    Law Act 1975, or any other formal

     maintenance obligation;

   in relation to the applicant; and

• (f)

  if the applicant, or the person of whom the applicant was a dependent child, ceased to be a dependent child of the spouse of the principal holder because the applicant or the person has turned 18—either:

  • (i)

    the spouse relationship between the spouse and the principal holder is continuing; or

  • (ii)

    if the spouse relationship between the spouse and the principal holder ceased after the applicant, or the person of whom the applicant was a dependent child, turned 18—the Minister is satisfied that the spouse relationship between the spouse and the principal holder would have continued if the spouse had not died; or

  • (iii)

    if the spouse relationship between the spouse and the principal holder had ceased otherwise than because of the death of the spouse—before the applicant, or the person of whom the applicant was a dependent child, turned 18, the principal holder:

    • (A)

      had been granted joint custody or access by a court; or

    • (B)

      had a residence order or contact order made under the Family Law Act 1975; or

    • (C)

      had an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation;

  • in relation to the applicant.  

“(12)

An applicant meets the requirements of this subclause if:

• (a)

  the applicant is the holder of a Subclass 450 or Subclass 850 visa; and 

• (b)

  the applicant would meet the requirements of subclause (9) or (10) except that the person who would have satisfied the primary criteria (‘the principal person’) has died; and

• (c)

  the Minister is satisfied that the applicant has maintained close business, cultural or personal ties in Australia and either: 

  • (i)

    the spouse relationship between the spouse and the principal person who would have satisfied the primary criteria would have continued; or

  • (ii)

    if the spouse relationship between the spouse and the principal person had ceased before the death of the principal person—the principal person:

    • (A)

      had been granted joint custody or access by a court; or

    • (B)

      had a residence order or contact order made under the Family Law Act 1975; or

    • (C)

      had an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation;

• in relation to the applicant.  

“(13)

An applicant meets the requirements of this subclause if:

• (a)

  the applicant is the holder of a Subclass 450 or Subclass 850 visa; and

• (b)

  at the time of the application, the applicant was a dependent child, or a dependent child of a dependent child, of the spouse of a person (‘the principal person’) who:

  • (i)

    sponsored the applicant as mentioned in clause 450.211; or

  • (ii)

    with whom the applicant has made a combined application for a Subclass 851 visa; and

• (c)

  the applicant would meet the requirements of subclause (9) or (10) except that:

  • (i)

    the applicant, or the person of whom the applicant was a dependent child, has ceased to be a dependent child of the spouse of the principal person because the applicant, or the person of whom the applicant was a dependent child, has turned 18; and

  • (ii)

    the principal person has died; and

• (d)

  the Minister is satisfied that the applicant has maintained close business, cultural or personal ties in Australia. 

“(14)

In this clause, a person ‘A’ is a member of the immediate family of another person ‘B’ if:

• (a)

  A is a spouse of B; or

• (b)

  A is a dependent child of B; or

• (c)

  A is a parent of B, and B had not turned 18 at the time of the application; or

• (d)

  A is a dependent child of a person who is, or has been, a dependent child of B.”. 

_____________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 20 March 1998.

2. Statutory Rules 1994 No. 268 as amended by 1994 Nos. 280, 322, 376 and 452; 1995 Nos. 3, 38, 117, 134, 268, 302 and 411; 1996 Nos. 12, 75 (regulations 7 and 8 were disallowed by the Senate on 11 September 1996), 76, 108, 121, 135, 198, 211 (regulations 4, 10, 11, 13.3, 14-37, 47-49, 51, 53-55, 74, 77.16, 77.19, 78, 85, 119 and 114 were disallowed by the Senate on 7 November 1996) and 276; 1997 Nos. 17, 64, 91, 92, 109, 137, 184, 185, 216, 263, 279, 288, 301 and 354.