Migration Regulations (Amendment) (Cth)

Statutory Rules 1997

No. 109 1

__________________

Migration Regulations 2(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 14 May 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

____________

1.   Commencement

1.1   These Regulations commence on 1 July 1997.

2.   Amendment

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

3.   Regulation 1.03 (Interpretation)

3.1   Definition of “Commonwealth Medical Officer”:

After “employed”, insert “or engaged”.

4.   New regulation 1.11A

4.1   After regulation 1.11, insert:

Ownership for the purposes of certain Parts of Schedule 2

 “1.11A.(1) Subject to subregulation (4), for Parts 127, 128, 129, 130, 131, 840, 841, 842, 843, 844, 845 and 846 of Schedule 2,ownership by an applicant, or the applicant’s spouse, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).

 “(2) To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:

• (a)

  a trust instrument; or

• (b)

  a contract; or

• (c)

  any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse, as the case requires, in relation to the asset, eligible investment or ownership interest;

stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.

 “(3) A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.

 “(4) Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse, has beneficial ownership:

• (a)

  is a dependent child of the applicant; and

• (b)

  made a combined application with the applicant; and

• (c)

  has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.”.

5.   Regulation 1.20J (Limitation on approval of sponsorships and nominations—spouse, prospective spouse and interdependency visas)

5.1   Paragraph 1.20J (1) (c):

Omit “visa”, substitute “relevant permission”.

5.2   Paragraph 1.20J (1) (d):

Omit “visa of a kind”, substitute “relevant permission in the circumstances”.

5.3   Paragraph 1.20J (1) (e):

Omit “visa”, substitute “relevant permission”.

5.4   After subregulation 1.20J (1), insert:

 “(1A) In subregulation (1):

‘relevant permission’ means:

• (a)

  in relation to an application for a visa referred to in paragraph (1) (a) or (b) made during the period from 1 November 1996 to 30 June 1997 (inclusive)—a visa; and

• (b)

  in relation to an application for a visa referred to in paragraph (1) (a) or (b) made on or after 1 July 1997—a visa, entry permit or other permission granted under the Act to remain indefinitely in Australia.”.

6.   Regulation 2.06A (Certain visas to state period that holder may stay in Australia)

6.1 Omit the regulation.

 

7.   Regulation 2.12D (Prescribed period for payment of unpaid amount of visa application charge (Act, subsection 64 (2)))

7.1   Paragraph 2.12D (a):

Omit “notice from the Minister under subsection 64 (2)”, substitute “notice”.

7.2   Paragraph 2.12D (b):

Omit “notice from the Minister under subsection 64 (2)”, substitute “notice”.

[NOTE: The following note should be inserted after regulation 2.12D:

“[NOTE: A notice sent under this regulation is taken to be received at a time worked out under regulation 5.03.]”.]

8.   Regulation 2.15 (Response to invitation to give information or comments—prescribed periods)

[NOTE: The following note should be inserted after regulation 2.15:

“[NOTE: An invitation sent under this regulation is taken to be received at a time worked out under regulation 5.03.]”.]

9.   Regulation 2.16 (Notification of decision on visa application)

9.1   Paragraph 2.16 (1) (c):

Omit the paragraph, substitute:

• “(c)

  by sending a notice of the decision to, or leaving a notice of the decision at:

  • (i)

    the last address given to the Minister by the applicant under subsection 53 (4) of the Act; or

  • (ii)

    if the applicant has not given to the Minister an address under that subsection, the last address given to the Minister by the applicant under subsection 53 (1) or (2) of the Act; or”.

10.   Regulation 4.02 (Application for internal review)

10.1   Paragraph 4.02 (2) (a):

Omit the paragraph, substitute:

• “(a)

  in the case of an internally-reviewable decision of a kind mentioned in paragraph (a) of the definition of ‘Part 5 reviewable decision’ in section 337 of the Act:

  • (i)

    if the decision was made before 1 July 1997—28 days after the notification of the internally-reviewable decision; and

  • (ii)

    if the decision was made on or after 1 July 1997—14 days after the notification of the internally-reviewable decision; or”.

[NOTE: The following note should be inserted after subregulation 4.02 (2):

“[NOTE: A notice, mentioned in subregulation (2), of an internally-reviewable decision is taken to be received at a time worked out under regulation 5.03.]”.]

11.   Regulation 4.03 (Combined applications for internal review)

11.1   Paragraph 4.03 (1) (a):

After “regulation 2.08”, insert “, 2.08A or 2.08B”.

11.2   Paragraph 4.03 (3) (a):

After “regulation 2.08”, insert “, 2.08A or 2.08B”.

12.   Regulation 4.04 (Internal review—prescribed fee and waiver)

12.1   Subregulation 4.04 (1):

Omit the subregulation, substitute:

 “(1) Subject to this regulation, the prescribed fee on an application for internal review of an internally-reviewable decision is:

• (a)

  if the application was made before 1 July 1997—$200; and

• (b)

  if the application was made on or after 1 July 1997—$500.”.

13.   Regulation 4.05 (Refund of fee for internal review)

13.1   Paragraphs 4.05 (1) (a) and (b):

Omit the paragraphs.

14.   Regulation 4.07 (Notification of decision of review officer)

14.1   Paragraph 4.07 (1) (a):

Omit the paragraph, substitute:

• “(a)

  by sending a notice of the decision to, or leaving a notice of the decision at:

  • (i)

    the last address given to the Minister by the applicant under subsection 53 (4) of the Act; or

  • (ii)

    if the applicant has not given to the Minister an address under that subsection, the last address given to the Minister by the applicant under subsection 53 (1) or (2) of the Act; or”.

15.   Regulation 4.08 (Response to invitation to give information or comments on internal review of decision—prescribed periods)

[NOTE: The following note should be inserted after regulation 4.08:

“[NOTE: An invitation given under this regulation is taken to be received at a time worked out under regulation 5.03.]”.]

16.   Regulation 4.10 (Time for lodgment of application for review by the Tribunal)

16.1   Paragraph 4.10 (1) (a):

Omit the paragraph, substitute:

• “(a)

  in the case of a primary decision of a kind mentioned in paragraph (a) of the definition of ‘Part 5 reviewable decision’ in section 337 of the Act:

  • (i)

    if the decision was made before 1 July 1997—28 days after the notification of the IRT-reviewable decision; and

  • (ii)

    if the decision was made on or after 1 July 1997—14 days after the notification of the

    IRT-reviewable decision; or”.

[NOTE: The following note should be inserted after subregulation 4.10 (2):

“[NOTE: A notice, mentioned in subregulation (1) or (2), of an IRT-reviewable decision is taken to be received at a time worked out under regulation 5.03.]”.]

17.   Regulation 4.12 (Combined applications for review by the Tribunal)

17.1   Paragraph 4.12 (2) (a):

Omit “regulation 2.08; and”, substitute “regulation 2.08, 2.08A or 2.08B; and”.

17.2   Paragraph 4.12 (5) (a):

After “regulation 2.08,”, insert “2.08A or 2.08B,”.

17.3   Paragraph 4.12 (6) (a):

After “regulation 2.08,”, insert “2.08A or 2.08B,”.

18.   Regulation 4.13 (Review by the Tribunal—prescribed fee and waiver)

18.1   Subregulation 4.13 (1):

Omit the subregulation, substitute:

 “(1) Subject to this regulation, the prescribed fee on an application for review by the Tribunal of a decision is:

• (a)

  if the application was made before 1 July 1997—$300; and

• (b)

  if the application was made on or after 1 July 1997—$500.”.

19.   Regulation 4.14 (Refund of fee for review by the Tribunal)

19.1   Paragraphs 4.14 (1) (a) and (b):

Omit the paragraphs.

19.2   Subregulation 4.14 (3):

Omit “1 November 1995,”, substitute “1 November 1995 and before 1 July 1997,”.

20.   Regulation 4.17 (Time limits etc. in relation to other evidence—bridging visa decisions)

[NOTE: The following note should be inserted after subregulation 4.17 (1):

“[NOTE: A notice, mentioned in subregulation (1), that the Tribunal has required evidence to be obtained is taken to be received at a time worked out under regulation 5.03.]”.]

21.   Regulation 4.18 (Time limits etc. in relation to other evidence—decisions other than bridging visa decisions)

[NOTE: The following note should be inserted after subregulation 4.18 (1):

“[NOTE: A notice, mentioned in subregulation (1), that the Tribunal has required evidence to be obtained is taken to be received at a time worked out under regulation 5.03.]”.]

22.   Regulation 4.30 (Remuneration and allowances)

22.1   Omit the regulation.

23.   Regulation 4.31 (Applications)

23.1   Paragraph 4.31 (2) (b):

Omit the paragraph, substitute:

• “(b)

  in any other case:

  • (i)

    if the RRT-reviewable decision was made before 1 July 1997—28 days; and

  • (ii)

    if the RRT-reviewable decision was made on or after 1 July 1997—14 days.”.

[NOTE: The note following subregulation 4.31 (2) should be replaced by the following note:

“[NOTE: A notice sent under subregulation (2) is taken to be received at a time worked out under regulation 5.03.]”.]

24.   Regulation 4.31A (Combined application for review by the Tribunal)

24.1   Paragraph 4.31A (1) (a):

Omit “regulation 2.08; and”, substitute “regulation 2.08, 2.08A or 2.08B; and”.

25.   New regulations 4.31B and 4.31C

25.1   After regulation 4.31A, insert:

Review by the Tribunal—fee and waiver

 “4.31B.(1) The fee for review by the Tribunal of an

RRT-reviewable decision is $1,000.

 “(2) The fee is payable:

• (a)

  within 7 days of the time when notice of the decision of the Tribunal is taken to be received by the applicant in accordance with regulation 5.03; or

• (b)

  if subregulation 5.03 (2) applies, within 7 days of the time when notice of the decision is received by the applicant.

 “(3) However, if:

• (a)

  the Tribunal determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol—the fee is not payable; and

• (b)

  a fee has been paid under this regulation and, following the Tribunal’s determination, the matter in relation to which the fee was paid is remitted by a court for reconsideration by the Tribunal—no further fee is payable under this regulation.

 “(4) If 2 or more applications for review are combined in accordance with regulation 4.31A, only 1 fee is payable for reviews that result from those applications.

 “(5) This regulation applies in relation to a review of a decision only if the application for review was made on or after 1 July 1997.

Refund (or waiver) of fee for review by the Tribunal

 “4.31C.(1)This regulation applies to a review of a decision if:

• (a)

  both:

  • (i)

    on review by a court, the decision is remitted for reconsideration by the Tribunal; and

  • (ii)

    the Tribunal determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

• (b)

  the Minister, under section 417 of the Act, has substituted for the decision of the Tribunal a decision that is favourable to the applicant.

 “(2) A fee paid under regulation 4.31B, or liable to be paid under regulation 4.31B, in relation to a decision to which this regulation applies is to be refunded, or waived, as the case requires.”.

26.   Regulation 4.35 (Time limit for providing evidence)

[NOTE: The following note should be inserted after regulation 4.35:

“[NOTE: A notice, mentioned in subregulation (2), (3) or (4), requiring a person to provide evidence to the Tribunal is taken to be received at a time worked out under regulation 5.03.]”.]

27.   Regulation 4.40 (Notice of decision of Tribunal)

[NOTE: The following note should be inserted after subregulation 4.40 (1):

“[NOTE: A notice or statement, mentioned in subregulation (1), is taken to be received at a time worked out under regulation 5.03.]”.]

28.   Regulation 4.41 (Service of documents)

28.1   Subregulation 4.41 (4):

Omit the subregulation.

[NOTE: The following note should be inserted after regulation 4.41:

“[NOTE: A document posted in accordance with this regulation is taken to be received at a time worked out under regulation 5.03.]”.]

29.   Regulation 5.01 (Interpretation)

29.1   Regulation 5.01:

Add at the end:

“; ‘review officer’ has the same meaning as in section 337 of the Act.”.

30.   Regulation 5.03 (Time of receipt of document etc. that is sent)

30.1   Regulation 5.03:

Before subregulation 5.03 (1), insert:

 “(1A) This regulation applies to a document sent by the Minister, a Tribunal or a review officer to an applicant, of any kind, under the Act or these Regulations.”.

30.2   Subregulation 5.03 (1):

Omit all the words preceding paragraph 5.03 (1) (a), substitute:

 “(1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the applicant at the time that the document is taken to be received at the address to which the document is sent, which is either:”.

31.   Regulation 5.40 (Fee for assessment of a person’s work qualifications and experience)

31.1   Subparagraph 5.40 (1) (b) (i):

Omit “$280;”, substitute “$355;”.

31.2   Subparagraph 5.40 (1) (b) (ii):

Omit “$470.”, substitute “$540.”.

31.3   Subregulation 5.40 (2):

Omit “$280.”, substitute “$355.”.

32.   Schedule 1 (Classes of visas)

32.1   Subitem 1104A (4):

Add at the end:

“846 (State/Territory Sponsored Regional           Established Business in Australia)”.

33.   Schedule 2, Part 010 (Bridging visa A)

33.1   Paragraph 010.211 (4) (b):

Omit the paragraph, substitute:

• “(b)

  he or she has not applied for a Protection (Class AZ) visa; and

• (c)

  the Minister is satisfied that the applicant has a compelling need to work.”.

33.2   Division 010.6:

Omit the Division, substitute:

“010.6conditions

“010.611 (1) In the case of a visa granted to a non-citizen who:

• (a)

  satisfies the criterion in subclause 010.211 (4); or

• (b)

  is both:

  • (i)

    an applicant for a Protection (Class AZ) visa; and

  • (ii)

    not a non-citizen described in subclause (2):

Nil.

“(2)

In the case of a visa granted to a non-citizen who:

• (a)

  applies for a Protection (Class AZ) visa on or after 1 July 1997; and

• (b)

  has been in Australia for a period of 14 days or more, or for periods totalling 14 days or more, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application:

Condition 8101.

“(3)

In any other case—whichever of conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108 and 8111 applies to:

• (a)

  the visa held by the holder at the time of application; or

• (b)

  if that visa has ceased, the last Bridging visa A or Bridging visa B held by the holder.”.

34.   Schedule 2, Part 020 (Bridging visa B)

34.1   Division 020.6:

Omit the Division, substitute:

“020.6conditions

“020.611 (1) In the case of a visa granted to a person who:

• (a)

  is an applicant for a Protection (Class AZ) visa; and

• (b)

  is not a person described in subclause (2):

Nil.

“(2)

In the case of a visa granted to a person who:

• (a)

  applies for a Protection (Class AZ) visa on or after 1 July 1997; and

• (b)

  has been in Australia for a period of 14 days or more, or for periods totalling 14 days or more, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application:

Condition 8101.

“(3)

In any other case—whichever of conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108 and 8111 applies to the bridging visa held by the holder at the time of application.”.

35.   Schedule 2, Part 030 (Bridging visa C)

35.1   Paragraph 030.212 (3) (b):

Omit the paragraph, substitute:

• “(b)

  in the case of an applicant who applies for a Protection (Class AZ) visa on or after 1 July 1997—the applicant has been in Australia for a period less than 14 days, or for periods totalling less than 14 days, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application; and

• (c)

  the Minister is satisfied that the applicant has a compelling need to work.”.

36.   Schedule 2, Part 050 (Bridging visa (General))

36.1   Subclause 050.212 (8):

Omit the subclause, substitute:

“(8)

An applicant meets the requirements of this subclause if:

• (a)

  he or she is the holder of a bridging visa Class E that is subject to condition 8101; and

• (b)

  in the case of an applicant who applies for a Protection (Class AZ) visa on or after 1 July 1997—the applicant has been in Australia for a period less than 14 days, or for periods totalling less than 14 days, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application; and

• (c)

  the Minister is satisfied that the applicant has a compelling need to work.”.

36.2   After clause 050.613, insert:

“050.613A   (1) In the case of a visa granted to an applicant (whether or not the applicant is an applicant to which any other clause in this Division applies) who:

• (a)

  applies for a Protection (Class AZ) visa on or after 1 July 1997; and

• (b)

  has been in Australia for a period of 14 days or more, or for periods totalling 14 days or more, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application:

Condition 8101.

“(2)

If the applicant is an applicant to whom subclause (1) applies, any 1 or more of conditions 8104, 8201, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.”.

37.   Schedule 2, Part 051 (Bridging visa (Protection Visa Applicant))

37.1   After clause 051.611, insert:

“051.611A   (1) In the case of a visa granted to an applicant (whether or not the applicant is an applicant to which any other clause in this Division applies) who:

• (a)

  applies for a Protection (Class AZ) visa on or after 1 July 1997; and

• (b)

  has been in Australia for a period of 14 days or more, or for periods totalling 14 days or more, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application:

Condition 8101.

“(2)

If the applicant is an applicant to whom subclause (1) and clause 051.611 applies—conditions 8101, 8201, 8402, 8506 and 8513.

“(3)

In addition, if the applicant is an applicant to whom subclause (1) applies, any 1 or more of conditions 8104, 8201, 8401, 8403, 8505, 8506, 8507, 8508, 8510, 8511 and 8512 may be imposed.”.

38.   Schedule 2, Part 127 (Business Owner)

[NOTE: The note following the heading to Division 127.1 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; and ‘main business’ is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

3.  There are no interpretation provisions specific to this Part.]”.]

39.   Schedule 2, Part 128 (Senior Executive)

[NOTE: The note following clause 128.111 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’ and ‘ownership interest’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.]”.]

40.   Schedule 2, Part 129 (State/Territory Sponsored Business Owner)

[NOTE: The note following the heading to Division 129.1 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; and ‘main business’ is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

3.  There are no interpretation provisions specific to this Part.]”.]

41.   Schedule 2, Part 130 (State/Territory Sponsored Senior Executive)

[NOTE: The note following clause 130.111 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’ and ‘ownership interest’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.]”.]

41.1   Subclause 130.213 (3):

After “The notification”, insert “must”.

42.   Schedule 2, Part 131 (Investment-linked)

[NOTE: The note following clause 131.111 should be replaced by the following note:

“[NOTE: 

1.  ‘AUD’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset, eligible investment or ownership interest, see regulation 1.11A.]”.]

43.   Schedule 2, Part 209 (Citizens of the Former Yugoslavia (Displaced Persons))

43.1   After clause 209.228, insert:

“209.229 The Minister is satisfied on the basis of the information contained in the application that the applicant is not eligible for a permanent visa of any other class.”.

44.   Schedule 2, Part 211 (Burmese in Burma)

44.1   After clause 211.227, insert:

“211.228 The Minister is satisfied on the basis of the information contained in the application that the applicant is not eligible for a permanent visa of any other class.”.

45.   Schedule 2, Part 212 (Sudanese)

45.1   After clause 212.227, insert:

“212.228 The Minister is satisfied on the basis of the information contained in the application that the applicant is not eligible for a permanent visa of any other class.”.

46.   Schedule 2, Part 213 (Burmese in Thailand)

46.1   After clause 213.227, insert:

“213.228 The Minister is satisfied on the basis of the information contained in the application that the applicant is not eligible for a permanent visa of any other class.”.

47.   Schedule 2, Part 415 (Foreign Government Agency)

47.1   Subparagraph 415.223 (1) (a) (i):

Omit “four months”, substitute “3 months”.

47.2   Paragraph 415.229 (1) (b):

Omit “4 months”, substitute “3 months”.

48.   Schedule 2, Part 418 (Educational)

48.1   Clause 418.222:

Omit “4 months”, substitute “3 months”.

48.2   Paragraph 418.230 (b):

Omit “4 months”, substitute “3 months”.

49.   Schedule 2, Part 421 (Sport)

49.1   Subparagraph 421.222 (6) (b) (iii):

Omit “4 months”, substitute “3 months”.

49.2   Paragraph 421.223 (b):

Omit “4 months”, substitute “3 months”.

49.3   Paragraph 421.224 (b):

Omit “4 months”, substitute “3 months”.

49.4   Clause 421.229:

Omit “4 months”, substitute “3 months”.

50.   Schedule 2, Part 423 (Media and Film Staff)

50.1   Paragraph 423.222 (2) (b):

Omit “4 months”, substitute “3 months”.

50.2   Paragraph 423.222 (3) (c):

Omit “4 months”, substitute “3 months”.

50.3   Paragraph 423.229 (b):

Omit “4 months”, substitute “3 months”.

51.   Schedule 2, Part 424 (Public Lecturer)

51.1   Subparagraph 424.211 (d) (ii):

Omit “Schedule 6 criteria 6005 and 6006; or”, substitute “Schedule 3 criteria 3003, 3004 and 3005; or”.

51.2   Subparagraph 424.211 (e) (ii):

Omit “Schedule 6 criteria 6004, 6005 and 6006.”, substitute “Schedule 3 criteria 3002, 3003, 3004 and 3005.”.

51.3   Paragraph 424.224 (a):

Omit “4 months”, substitute “3 months”.

51.4   Paragraph 424.224 (b):

Omit “4 months”, substitute “3 months”.

51.5   Paragraph 424.229 (b):

Omit “4 months”, substitute “3 months”.

52.   Schedule 2, Part 840 (Business Owner)

[NOTE: The note following the heading to Division 840.1 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; and ‘main business’ is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

3.  There are no interpretation provisions specific to this Part.]”.]

53.   Schedule 2, Part 841 (Senior Executive)

[NOTE: The note following clause 841.111 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’ and ‘ownership interest’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.]”.]

54.   Schedule 2, Part 842 (State/Territory Sponsored Business Owner)

[NOTE: The note following the heading to Division 842.1 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; and ‘main business’ is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

3.  There are no interpretation provisions specific to this Part.]”.]

55.   Schedule 2, Part 843 (State/Territory Sponsored Senior Executive)

[NOTE: The note following clause 843.111 should be replaced by the following note:

“[NOTE: 

1.  ‘appropriate regional authority’, ‘AUD’, ‘eligible business’, ‘fiscal year’ and ‘ownership interest’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.]”.]

56.   Schedule 2, Part 844 (Investment-linked)

[NOTE: The note following clause 844.111 should be replaced by the following note:

“[NOTE: 

1.  ‘AUD’, ‘fiscal year’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03.

2.  As to beneficial ownership of an asset, eligible investment or ownership interest, see regulation 1.11A.]”.]

57.   Schedule 2, Part 845 (Established Business in Australia)

[NOTE: The note following the heading to Division 845.1 should be replaced by the following note:

“[NOTE: 

1.  ‘AUD’, ‘ownership interest’ and ‘qualifying business’ are defined in regulation 1.03; and ‘main business’ is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.

3.  There are no interpretation provisions specific to this Part.]”.]

57.1   Clause 845.711:

After “a”, insert “valid”.

58.   Schedule 2—new Part 846

58.1   After Part 845, insert the Part set out in the Schedule.

59.   Schedule 4 (Public interest criteria and related provisions)

59.1   Subclause 4011 (1):

Omit “during that”, substitute “during which”.

 

59.2   Paragraph 4011 (2) (b):

Omit the paragraph, substitute:

• “(b)

  the applicant has all the characteristics of a class of persons specified by the Minister by Gazette Notice for the purposes of this paragraph.”. 

59.3   After subclause 4011 (2), insert:

“(2A)

In specifying a class of persons for the purposes of paragraph (2) (b), the Minister must have regard to statistics prepared by the Secretary:

• (a)

  from movement records kept by Immigration about persons who have remained in Australia after expiry of the period during which each person was authorised to remain in Australia under the visa with which he or she last entered Australia; and

• (b)

  having regard to one or more of the characteristics mentioned in subclause (3).”.  

59.4   Subclause 4011 (3):

Omit “For the purposes of subclause (2), a relevant characteristic is any of the following characteristics:”, substitute “For the purposes of paragraph (2) (b), a characteristic is any of the following:”

60.   Schedule 7 (Business skills points test—attributes and points)

60.1   After Division 1.4, insert:

“Division 1.5—State/Territory sponsored established main

business(es) in designated area(s)

(Subclass 846 visas)

7180	Throughout the period of 2 years immediately before the making of the application, the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) in a designated area (or areas) employed at least 3 full-time employees (or a number of part-time employees working an equivalent number of hours) each of whom: (a) is not the applicant or a member of the family unit of the applicant; and (b) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen	60
7181	Throughout the period of 2 years immediately before the making of the application, the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse) in a designated area (or areas) employed at least 2 full-time employees (or a number of part-time employees working an equivalent number of hours) each of whom: (a) is not the applicant or a member of the family unit of the applicant; and (b) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen	40”.

60.2   Division 3.1 (heading):

Omit the heading, substitute:

“Division 3.1—Language ability of applicant

(Subclasses 127-130, 840-843, 845 and 846)”.

______________

 SCHEDULE  Regulation 58

NEW PART 846 FOR INSERTION IN SCHEDULE 2 TO THE MIGRATION REGULATIONS

SUBCLASS 846—STATE/TERRITORY SPONSORED regional established business in Australia

846.1INTERPRETATION

846.111 In this Part:

“designated area” means an area specified by Gazette Notice as a designated area for the purposes of item 6701 in Schedule 6.

[NOTE:

1.  “appropriate regional authority”, “AUD” and “ownership interest” are defined in regulation 1.03; and “main business” is defined in regulation 1.11.

2.  As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.]

846.2PRIMARY CRITERIA

[NOTE:  The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.]

846.21Criteria to be satisfied at time of application

846.211The applicant:

• (a)

  is the holder of a Subclass 457 (Business (Long Stay)) visa; and

• (b)

  has been in Australiaas the holder of a temporary substantive visa for a period of, or periods amounting to, at least 1 year during the period of 2 years immediately preceding the making of the application.

846.212 The applicant:

• (a)

  has had, throughout the 2 years immediately preceding the making of the application, an ownership interest in 1 or more established main businesses in 1 or more designated areas, which has, or together have, either:

  • (i)

    had a turnover of not less than AUD200,000 in each of those years; or

  • (ii)

    exported goods or services of a value not less than AUD100,000 in each of those years; and

• (b)

  continues to have an interest of that kind.

846.213 The total value of the net assets in Australia of the applicant, or the applicant and the applicant’s spouse together:

• (a)

  is; and

• (b)

  has been throughout the period of 2 years immediately preceding the making of the application;

at least AUD200,000.

846.214 The total value of the net assets owned by the applicant, or by the applicant and the applicant’s spouse together, in 1 or more established main businesses in 1 or more designated areas:

• (a)

  is; and

• (b)

  has been throughout the period of 2 years immediately preceding the making of the application;

at least AUD75,000.

846.215 Throughout the 2 years immediately preceding the making of the application, the applicant, as the ownerof an interest in 1 or more established main businesses in 1 or more designated areas, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.

846.216 The applicant has overall had a successful business career.

846.217 Neither the applicant nor the applicant’s spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.

846.218 (1) The applicant has notified an appropriate regional authority of a State or Territory of the applicant’s business history in a designated area, or designated areas, in that State or Territory.

(2)

The applicant submits a notification, on approved form 950, from that appropriate regional authority stating that the authority will consider sponsoring the applicant.

(3)

The notification must:

• (a)

  be signed by an officer of the authority who is authorised to sign a notification of that kind; and

• (b)

  bear the seal of the authority.

846.219 The applicant has signed a declaration in a form approved by the Minister that the applicant acknowledges the Government’s requirements in relation to residence in Australia as the holder of a Subclass 846 visa.

846.22Criteria to be satisfied at time of decision

846.221 The applicant continues to satisfy clauses 846.211 to 846.218.

846.222 (1) The applicant’s score on the business skills points test is not less than the number of points that is specified for the purposes of this subclause by Gazette Notice.

(2)

For the purposes of subclause (1):

• (a)

  an applicant’s score on the business skills points test is the sum of the applicant’s scores under:

  • (i)

    Division 1.5 of Schedule 7; and

  • (ii)

    Parts 2, 3, 4 and 5 of that Schedule; and

(b) an applicant’s score under a Subdivision or Part of Schedule 7 is the number of points specified in that Subdivision or Part in relation to the attribute described in the Subdivision or Part that relates to the applicant:

• (i)

  in the case of an attribute specified in Part 3 or 5 of that Schedule—at the time when the application is decided; and

• (ii)

  in the case of any other attribute—at the time when the application is made;

 and if there is more than 1 attribute of either of those kinds, the highest single number of points so specified; and

• (c)

  in determining the score of an applicant under Part 4 of Schedule 7, only:

  • (i)

    assets in Australia; or

  • (ii)

    assets available for transfer, and capable of being transferred, to Australia within 2 years of grant of a Business Skills (Residence) (Class BH) visa to the applicant;

 are to be taken into account.

846.223 (1) The applicant has been sponsored (on approved form 949) by an appropriate regional authority.

(2)

The sponsorship must:

• (a)

  be given by the same authority as gave the notification referred to in subclause 846.218 (2); and

• (b)

  be signed by an officer of the authority who is authorised to sign a sponsorship of that kind; and

• (c)

  bear the seal of that authority; and

• (d)

  be given to the Minister within 90 days after the Minister asks for it; and

• (e)

  be the first sponsorship of that kind, in relation to the applicant, given to the Minister.

846.224 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

846.225 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 846 visa is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

(2)

Each member of the family unit of the applicant who is not an applicant for a Subclass 846 visa is a person who:

• (a)

  satisfies public interest criteria 4001, 4002, 4003 and 4004; and

• (b)

  satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

846.226 If either:

• (a)

  the family unit of the applicant includes a dependent child who made a combined application with the applicant; or

• (b)

  a child who:

  • (i)

    is usually resident with the applicant; and

  • (ii)

    has not turned 18;

 made a combined application with the applicant;

the Minister is satisfied that the grant of the Subclass 846 visa to the child as a member of the family unit of the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the child.

846.3SECONDARY CRITERIA

[NOTE:  The secondary criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.]

846.31Criteria to be satisfied at time of application

846.311 The applicant is a member of the family unit of a person who:

• (a)

  has applied for a Business Skills (Residence) (Class BH) visa; and

• (b)

  on the basis of the information provided in his or her application, appears to satisfy the criteria in Subdivision 846.21;

and the Minister has not decided to grant or refuse to grant the visa to that other person.

846.32Criteria to be satisfied at time of decision

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

(2)

An applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person (in this clause called “the non-dependent holder”) who, having satisfied the primary criteria, is the holder of a Subclass 846 visa.

(3)

An applicant meets the requirements of this subclause if:

• (a)

  the applicant is the spouse of the non-dependent holder; and

• (b)

  the relationship between the non-dependent holder and the applicant has ceased; and

• (c)

  1 or more of the following persons:

  • (i)

    the applicant;

  • (ii)

    a member of the family unit of the applicant who has made a combined application with the

    non-dependent holder;

  • (iii)

    a dependent child of the applicant or of the

    non-dependent holder;

 has suffered domestic violence committed by the

non-dependent holder.

(4)

An applicant meets the requirements of this subclause if:

• (a)

  the applicant is a member of the family unit of the spouse of the non-dependent holder; and

• (b)

  the spouse meets the requirements of subclause (3); and

• (c)

  the applicant has made a combined application with the non-dependent holder; and

• (d)

  the spouse has been granted a Subclass 846 visa.

[NOTE:  For special provisions relating to domestic violence, see Division 1.5.]

846.322 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

846.323 If the applicant is the dependent child of a person who is a holder of a Subclass 846 visa, the Minister is satisfied that the grant of the visa to the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the applicant.

846.4CIRCUMSTANCES APPLICABLE TO GRANT

846.411 The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

846.5 WHEN VISA IS IN EFFECT

846.511 Permanent visa permitting the holder to travel to, and enter, Australia for a period of 5 years from the date of grant.

846.6CONDITIONS

846.611 Nil.

846.7WAY OF GIVING EVIDENCE

846.711 Visa label affixed to a valid passport.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 21 May 1997.

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, 76, 108, 121, 135, 198, 211 and 276; 1997 Nos. 17, 64, 91 and 92.