Migration Regulations (Amendment) (Cth)

Statutory

Rules1991No. 18 1

__________________

Migration Regulations 2(Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Migration Act 1958.

 Dated 14 February 1991.

  BILL HAYDEN

 Governor-General

 By His Excellency’s Command,

GERRY HAND

Minister of State for Immigration,

Local Government and Ethnic Affairs

____________

1.   Commencement

1.1   These Regulations, other than regulation 35.1, are taken to have commenced on 1 February 1991.

1.2   Regulation 35.1 is taken to have commenced on 10 December 1990.

2.   Amendment

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

3.   Regulation 2 (Interpretation)

3.1   Subregulation 2 (1):

After the definition of “Australian permanent resident”, insert:

“‘category A course’ means a course of study approved under subparagraph 98B (1) (a) (i);

‘category A student’ means a student who holds a student (category A) visa or entry permit;

‘category B course’ means a course of study approved under subparagraph 98D (1) (a) (i);

‘category B student’ means a student who holds a student (category B) visa or entry permit;”.

3.2   Subregulation 2 (1):

After the definition of “dependent child”, insert:

“‘EMSS’ means Equity and Merit Scholarship Scheme;

‘Equity and Merit Scholarship Scheme’ means the scholarship scheme of that name administered by AIDAB;”.

3.3   Subregulation 2 (1):

After the definition of “equivalent”, insert:

“‘exchange student’ means an overseas secondary school student participating in a secondary school student exchange program approved by:

• (a)

  the State or Territory education authority that administers the program; and

(b)

the Minister for Employment, Education and Training;”.

3.4   Subregulation 2 (1) (definition of “formal course”):

Omit “course’ means:”, substitute “course’, in the case of a visa or entry permit granted before 1 February 1991, means:”.

3.5   Subregulation 2 (1) (definition of “non-formal course”):

Omit “‘course’ means”, substitute “‘course’, in the case of a visa or entry permit granted before 1 February 1991, means”.

3.6   Subregulation 2 (1):

After the definition of “non-formal course”, insert:

“‘non-formal course student’, in the case of a visa or entry permit granted before 1 February 1991, means a person granted entry to Australia to attend a full-time non-formal course of study.”.

3.7   Subregulation 2 (1):

After the definition of “NOOSR”, insert:

“‘occupational trainee’ means a person approved as an occupational trainee under subparagraph 87B (1) (a) (i);”.

3.8   Subregulation 2 (1):

After the definition of “priority list of occupations”, insert:

“‘private subsidised student’ means a student enrolled in a course of study in respect of which the student is subsidised under the Private Subsidised Overseas Student Program administered by the Department of Employment, Education and Training;”.

 

3.9   Subregulation 2 (1) (definition of “student visa”):

Omit the definition, substitute:

“‘student visa’ means:

• (a)

  in the case of a visa granted before 1 February 1991, a visa of the class specified in item 39, 40, 41, 42, 43, 44 or 56 in Part 1 in Schedule 2 as in force when the visa was granted; or

• (b)

  in the case of a visa granted on or after 1 February 1991, a visa of the class specified in item 58 or 59 in Part 1 in Schedule 2;”.

3.10   Subregulation 2 (1) (definition of “temporary resident visa”):

Omit from paragraph (a) “13 or 15 to 28 inclusive or items 30 to 38 inclusive”, substitute “13, 16 to 28 (inclusive), 30 to 38 (inclusive), 47 and 60”.

3.11   Subregulation 2 (1):

After the definition of “temporary resident visa”, insert:

“‘terminating condition’:

• (a)

  in the case of a visa, has the meaning set out in subregulation 16 (8); and

• (b)

  in the case of an entry permit, has the meaning set out in subregulation 27 (3);”.

3.12   Subregulation 2 (1) (definition of “trainee”):

Omit “means”, substitute “, in the case of a visa or entry permit granted before 1 February 1991, means”.

4.   Regulation 7 (Interpretation—member of family unit)

4.1   Subregulation 7 (1):

Omit “(other than a student visa or a student entry permit)”, substitute “(other than an applicant referred to in subregulation (2))”.

4.2   Subregulation 7 (2):

Omit “or a student entry permit”, substitute “, an occupational trainee visa or an entry permit that is equivalent to such a visa”.

5.   Regulation 11 (Application for visa outside Australia)

5.1   Paragraph 11 (2) (d):

Omit the paragraph, substitute:

“(d)

the applicant is applying for a student visa:

 (i) under the EMSS; or

 (ii) the application for which is supported by AIDAB; or”.

6.   New Regulation 12B

6.1   After regulation 12A, insert:

Certain applications for student visas to have effect as applications for student visas or occupational trainee visas, as appropriate

 “12B. An application for a student visa lodged before 1 February 1991, a decision on which was not made before 1 February 1991, has effect on and after 1 February 1991 as an application for a student visa or an occupational trainee visa whichever is appropriate in circumstances set out in the application.”.

7.   Regulation 13 (Grant of visa)

7.1   Subparagraph 13 (2) (a) (i):

Omit “13 to 24 inclusive”, substitute “13 and 14 and 16 to 24 (inclusive)”.

7.2   Subparagraph 13 (2) (a) (ii):

Omit the subparagraph, substitute:

 “(ii) items 26 to 38 (inclusive) in that Part;

 (iiA) items 45 to 50 (inclusive) in that Part;”.

7.3   Subparagraph 13 (2) (a) (iii):

Omit the subparagraph, substitute:

 “(iii) items 57, 58, 59 and 60 in that Part;”.

8.   Regulation 16 (Effect and operation of visas)

8.1   Subregulation 16 (8):

Add at the end:

• “(g)

  a condition referred to in subregulation 98C (1), (2) or (3), paragraph 98C (4) (a), subregulation 98E (1), (2), (3), (4) or   (5) or paragraph 98E (6) (a).”.

9.   Regulation 18 (Mandatory conditions for grant of visa)

9.1   Subregulation 18 (1):

Omit “the condition referred to in Column 3 of that

 item”, substitute “the conditions, referred to in Column 3 of that item, that are relevant to the applicant”.

10.   New Regulation 22C

10.1   After regulation 22B, insert:

Certain applications for student entry permits to have effect as applications for student entry permits or occupational trainee entry permits, as appropriate

 “22C. An application for a student entry permit lodged before 1 February 1991, a decision on which was not made before 1 February 1991, has effect on and after 1 February 1991 as an application for a student entry permit or an occupational trainee entry permit whichever is appropriate in circumstances set out in the application.”.

11.   Regulation 27 (Effect and operation of entry permits)

11.1   Subregulation 27 (3):

Add at the end:

• “(f)

  a condition referred to in subregulation 98C (1), (2) or (3), paragraph 98C (4) (a), subregulation 98E (1), (2), (3), (4) or   (5) or paragraph 98E (6) (a).”.

12.   Regulation 29 (Mandatory conditions for grant of entry permit)

12.1   Subregulation 29 (1):

Omit “the condition referred to in Column 3 of that

 item”, substitute “the conditions, referred to in Column 3 of that item, that are relevant to the applicant”.

13.   Regulation 34A (Satisfaction of prescribed criteria)

13.1   After subregulation 34A (1), insert:

 “(1A) If, on or after 19 December 1989:

• (a)

  the applicant has applied for an entry permit the criteria for which are specified in:

   (i) regulation 123, 123A or 125B as in force before 1 February 1991; or

 (ii) regulation 120, 121, 122, 125 or 125A; and

(b)

a decision on the application has not been made;

the applicant must satisfy the criteria when the decision on the application is made.”.

14.   Regulation 39 (Prescribed class of persons—subsection 47 (7) of the Act (definition of “prescribed non-citizen”))

14.1   Regulation 39:

Omit the regulation, substitute:

Prescribed class of persons—subsection 47 (7) of the Act (definition of “prescribed non-citizen”)

“39.For the purposes of paragraph (a) of the definition of ‘prescribed non-citizen’ in subsection 47 (7) of the Act, the following are prescribed classes of persons:

• (a)

  any person to whom a visa or entry permit was granted before 1 February 1991:

   (i) who was a prescribed immigrant within the meaning of paragraph 6A (4) (c) of the Act as in force immediately before 2 April 1984; or

   (ii) who was a prescribed non-citizen within the meaning of paragraph 6A (4) (c) of the Act as in force immediately before 19 December 1989; or

   (iii) who is an assisted student or a trainee (other than a person who holds a student (formal course) visa or entry permit); or

   (iv) who is the holder of a valid student (restricted) visa or entry permit; or

   (v) who is a dependant of a person referred to in subparagraph (i), (ii), (iii) or (iv), being a dependantwho is the holder of a valid dependant (subsequent  entry) visa or entry permit;

   other than a person:

   (vi) who:

   (A) is a citizen of the People’s Republic of China; and

   (B) entered Australia on or before 20 June 1989 for the purpose of engaging in training or study; and

   (C) was in Australia on that day; or

   (vii) who is a family unit member of a person referred to in subparagraph (vi); and

• (b)

  an assisted student, an exchange student, a category B student or an occupational trainee (other than a person to whom subparagraph (a) (vi) or (vii) applies).”.

15.   Regulation 40 (Prescribed change in circumstances - paragraphs 36(1)(a) and 37(2)(a) of the Act)

15.1   Subregulation 40(1):

Add at the end:

• “(p)

  the person:

   (i) is a citizen of the People’s Republic of China; and

 (ii) entered Australia on or before 20 June 1989; and

 (iii) was in Australia on that day; and

 (iv) satisfies the criteria specified in regulations 128 and 139.”.

16.   Regulation 42 (Classes of entry permit)

16.1   Subparagraph 42 (1a) (c) (iii):

Omit “eligibilty”, substitute “eligibility”.

16.2   Paragraph 42 (1C) (d):

Omit the paragraph.

16.3   Subregulation 42 (2):

Omit all the words from and including “items” to and including “holder”, substitute “items 1, 3, 5, 6, 8 to 14 (inclusive), 16 to 26 (inclusive), 34, 35 to 56 (inclusive), 58, 59, 59B, 66a, 66b, 67 to 72 (inclusive) and 74 to 78 (inclusive) in Schedule 3 by the holder”.

16.4   Add at the end:

“(7)

The following criterion is prescribed for an application for an entry permit by a person who is the holder of a valid visa granted before 1 February 1991, namely, that the Minister is satisified that the entry permit applied for would be equivalent to that visa if:

(a)

it had been granted on or after 1 February 1991; and

• (b)

  the circumstances of the person had not changed since its grant.”.

17.   Regulation 58 (Dependant (subsequent entry) visa)

17.1   Omit the regulation.

18.   Regulation 82 (Private subsidised student visa)

18.1   Omit the regulation.

19.   Regulation 83 (Student (AIDAB) visa)

19.1   Omit the regulation.

20.   Regulation 84 (Student (Equity and Merit Scholarship Scheme) visa)

20.1   Omit the regulation.

21.   Regulation 85 (Student (formal course) visa)

21.1   Omit the regulation.

22.   Regulation 86 (Trainee (English language) visa)

22.1   Omit the regulation.

23.   Regulation 87 (Trainee (non-formal course) visa)

23.1   Omit the regulation.

24.   Regulation 87A (Student (restricted) visa)

24.1   Omit the regulation.

25.   New Regulation 87B

25.1   Before regulation 88, insert:

Occupational trainee visa

 “87b. The additional criteria for an occupational trainee visa are that, when a decision on the application for the visa is made:

• (a)

  the applicant produces to the Minister evidence:

   (i) that the Minister of State for Employment, Education and Training approves of the applicant undertaking occupational training in Australia as an occupational trainee; and

   (ii) if the application for the visa is made under regulation 108 by a member of the family unit of the applicant—that that Minister supports the application; and

  • (b)

    the Minister is satisfied:

   (i) that the applicant is a genuine applicant for entry to Australia as an occupational trainee; and

   (ii) if the application for the visa is made by a member of the family unit of the applicant—that the applicant genuinely seeks entry as a temporary resident as a member of that family unit; and

• (c)

  the applicant, and any member of the family unit of the applicant, produce to the Minister evidence of adequate arrangements in Australia for health insurance during the validity of the visa or entry permit.”.

26.   PART 3 (Prescribed criteria for classes of visas and entry permits)

26.1   After Division 2, insert:

“Division 2A—Additional criteria for student visas and entry permits

Student (category A) visa

 “98B. (1)   The additional criteria for a student (category A) visa are that, when a decision on the application for the visa is made:

• (a)

  the applicant produces to the Minister evidence of enrolment to undertake a full-time course of study:

   (i) approved as a category A course by the Minister for Employment, Education and Training; or

   (ii) that is a prerequisite for undertaking a category A course so approved, and  produces to the Minister evidence of provisional enrolment to undertake that category A course; or

 (iii) as an exchange student; or

 (iv) as a student approved by AIDAB; or

 (v) as an EMSS student; or

 (vi) as a private subsidised student, with the the approval of the Minister for Employment, Education and Training; or

 (vii) being a course of study:

 (A) that the applicant commenced to undertake before  1 February 1991; and

 (B) that the applicant is undertaking; and

 (C) in relation to which the applicant was granted a student (formal course) visa or entry permit; and

• (b)

  the applicant produces to the Minister evidence that the Minister for Employment, Education and Training, or AIDAB, has approved the enrolment of the applicant in the course; and

(c)

the Minister is satisified that:

 (i) the applicant is a genuine applicant for entry as a  student: and

 (ii) the applicant will have adequate means of support during the period of validity of the visa or entry permit; and

• (d)

  if the applicant is not an assisted student, the applicant  produces to  the Minister:

   (i) evidence of payment of tuition fees for the initial semester or period of study; or

   (ii) if the applicant proposes to undertake a category A course and a course that is a prerequisite for that course, evidence of payment of the fees for the prerequisite course; and

  • (e)

    the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the period of validity of the visa or entry permit.

“(2)

  Where subregulation (1) does not apply, the additional criteria for a student (category A) visa are that, when a decision on the application for the visa is made:

(a)

the applicant is a member of the family unit of:

 (i) the holder of a student (category A) visa or equivalent  entry permit; or

 (ii) the holder of:

 (A) a student (formal course); or

 (B) a student (AIDAB); or

 (C) a student (EMSS); or

 (D) a private subsidised student;

 visa or entry permit; and

• (b)

  the applicant produces to the Minister evidence that the Minister for Employment, Education and Training, or AIDAB, supports the application for the visa; and

(c)

the Minister is satisified that:

 (i) the applicant genuinely seeks temporary entry as a member of that family unit; and

 (ii) that holder will have adequate means to support the holder and the applicant during the period of validity of the visa or entry permit, having regard to any rights they may have to work in Australia during that period; and

• (d)

  the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the period of validity of the entry visa.

Conditions—student (category A) visa

 “98C. (1)   A student (category A) visa granted to a person who is an applicant referred to in subregulation 98B (1) is granted subject to the following terminating conditions:

• (a)

  that the person does not engage in work (other than in relation to his or her course of study) for more than 20 hours in any week during which the institution at which the person is studying is in session; and

(b)

that the person satisfies course requirements.

“(2)

In the following cases, a student (category A) visa granted to a person who is an applicant referred to in subregulation 98B (2) is granted subject to the terminating condition that the person does not engage after 14 March 1992 in work for more than 20 hours in any week during which the institution at which the person is studying is in session:

• (a)

  if the application for the visa is lodged before 1 February 1991; or

(b)

if:

 (i) the application for the visa is lodged on or after 1 February 1991; and

 (ii) the applicant is a member of the family unit of a person:

 (A) who is an assisted student; or

 (B) who is the holder of a student (formal course), or a student (category A), visa or entry permit;

 who commenced to undertake his or her course before 1 February 1991 and is undertaking the course.

“(3)

In the following case, a student (category A) visa granted to a person who is an applicant referred to in subregulation 98B (2) is granted subject to the terminating condition that the person does not engage in work for more than 20 hours in any week during which the institution at which the person is studying is in session, namely, if:

 (a) the application for the visa is lodged on or after 1 February 1991; and

(b)

the applicant is a member of the family unit of a person:

 (i) who is an assisted student; or

 (ii) who is the holder of a student (formal course), or a student (category A), visa or entry permit;

 who commenced to undertake his or her course on or after 1 February 1991.

(4)

A student (category A) visa is subject to:

 (a) the terminating condition that the applicant can produce to the Minister evidence of adequate arrangements for health insurance during the period of validity of the visa or entry permit; and

(b)

the condition referred to in paragraph 23 (4) (a) of the Act.

Student (category B) visa

 “98D. (1)   The additional criteria for a student (category B) visa are that, when a decision on the application for the visa is made:

• (a)

  the applicant produces to the Minister evidence of enrolment to undertake a full-time course of study:

   (i) approved as a category B course by the Minister for Employment, Education and Training; or

   (ii) that:

   (A) comprises a unit or units of a category A course approved under subparagraph 98B (1)(a) (i); but

   (B) does not lead to the grant of an award in Australia; or

   (iii) that is a prerequisite for undertaking a category B course approved under subparagraph (a) (i) and produces to the Minister evidence of provisional enrolment to undertake that category B course; or

   (iv) that is a non-formal course or an English language course:

   (A) that the applicant commenced to undertake before 1 February 1991 and is undertaking; and

   (B) in relation to which the applicant was granted a trainee (non formal), trainee (English language) or student (restricted) visa or entry permit; and

   (C) in relation to which the applicant is not an assisted student; and

• (b)

  the applicant produces to the Minister evidence that the Minister for Employment, Education and Training, or AIDAB, has approved the enrolment of the applicant in the course; and

• (c)

  the Minister is satisfied that the applicant is a genuine applicant for entry as a student; and

(d)

the applicant produces to the Minister:

 (i) evidence of payment of fees for the initial semester or period of study; or

 (ii) if the applicant is required to undertake a course that is a prerequisite for a category B course approved under subparagraph (a) (i), evidence of payment of the fees for the prerequisite course; and

• (e)

  the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the period of validity of the visa or entry permit.

“(2)

For the purposes of paragraph (1) (c), the Minister may have regard:

• (a)

  to the financial ability of the applicant to undertake the course without contravening any terminating condition relating to the work that the applicant may engage in; and

• (b)

  subject to regulation 98F, to the applicant’s comprehension of the English language for the purposes of the course; and

• (c)

  any other relevant matter.

“(3)

  Where subregulation (1) does not apply, the additional criteria for a student (category B) visa are that, when a decision on the application for the visa is made:

(a)

the applicant is a member of the family unit of:

 (i) the holder of:

 (A) a student (category B) visa or equivalent entry permit; or

 (B) a trainee (English language), or trainee (non-formal course), visa or entry permit;

 who:

 (C) is a citizen of a country specified by the Minister by notice in the Gazette as a country to which this paragraph applies; or

 (D) is undertaking a course of study paid for, wholly or in part, by the government of his or her home country or by an inter-governmental agency; or

 (ii) the holder of:

 (A) a student (category B) visa or equivalent entry permit; or

 (B) a trainee (English language), or trainee (non-formal course), visa or entry permit;

 who:

 (C) is not a citizen of a country specified by the Minister by notice in the Gazette as a country to which this paragraph applies; and

 (D) is not undertaking a course of study paid for, wholly or in part, by the government of his or her home country or by an inter-governmental agency; and

 who:

 (E) has been granted a visa or entry permit in relation to a course of a duration of 12 months or more; or

 (F) has been lawfully in Australia for 12 months or more; or

 (G) is a non-formal course, or category B, student who was enrolled in a college which ceased teaching operations; and

• (b)

  the applicant produces to the Minister evidence that the Minister for Employment, Education and Training, or AIDAB, supports the application; and

(c)

the Minister is satisified that:

 (i) the applicant genuinely seeks temporary entry as a member of that family unit; and

 (ii) the holder will have adequate means to support the holder and the applicant during the period of validity of the visa or entry permit, having regard to any rights they may have to work in Australia during that period; and

• (d)

  the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the period of validity of the entry visa.

Conditions-student (category B) visa

 “98E. (1)  A student (category B) visa granted to a person who is an applicant referred to in subregulation 98D (1) is granted subject to the following terminating conditions:

(a)

namely:

 (i) if at the time of the application for the visa the person holds a student (restricted) visa or entry permit, that the person does not engage in work (other than in relation to his or her course of study) without the approval in writing of the Secretary; or

 (ii) in any other case, that the person does not engage in work (other than in relation to his or her course of study) for more than 20 hours in any week during which the institution at which the person is studying is in session; and

• (b)

  that the person satisfies course requirements.

“(2)

In the following cases, a student (category B) visa granted to an applicant because the applicant satisifies the criteria referred to in subparagraph 98D (3) (a) (i) and paragraphs 98 (3) (b), (c) and (d) is granted subject to the terminating condition that the applicant does not engage after 14 March 1992 in work for more than 20 hours in any week:

• (a)

  if the application for the visa is lodged before 1 February 1991; or

(b)

if:

 (i) the application for the visa is lodged on or after 1 February 1991; and

 (ii) the applicant is a member of the family unit of the holder of a student visa or entry permit who:

 (A) commenced to undertake his or her course before 1 February 1991; and

 (B) is undertaking that course.

“(3)

In the following cases, a student (category B) visa granted to an applicant because the applicant satisifies the criteria referred to in subparagraph 98D (3) (a) (ii) and paragraphs 98 (3) (b), (c) and (d) is granted subject to the terminating condition that the applicant does not engage after 14 March 1992 in work without the approval in writing of the Secretary:

• (a)

  if the application for the visa is lodged before 1 February  1991; or

(b)

if:

 (i) the application for the visa is lodged on or after 1 February  1991; and

 (ii) the applicant is a member of the family unit of the holder of a student visa or entry permit who:

 (A) commenced to undertake his or her course before 1 February 1991; and

 (B) is undertaking that course.

“(4)

In the following case, a student (category B) visa granted to an applicant because the applicant satisifies the criteria referred to in subparagraph 98D (3) (a) (i) and paragraphs 98 (3) (b), (c) and (d) is granted subject to the terminating condition that the applicant does not engage after 14 March 1992 in work for more than 20 hours in any week, namely, if:

• (a)

  the application for the visa is lodged on or after 1 February 1991; and

• (b)

  the applicant is a member of the family unit of the holder of a student visa or entry permit who:

   (i) commenced to undertake his or her course on or after 1 February 1991; and

   (ii) is undertaking that course.

“(5)

In the following case, a student (category B) visa granted to an applicant because the applicant satisifies the criteria referred to in subparagraph 98D (3) (a) (ii) and paragraphs 98D (3) (b), (c) and (d) is granted subject to the terminating condition that the applicant does not engage in work without the approval in writing of the Secretary, namely, if:

• (a)

  the application for the visa is lodged on or after 1 February 1991; and

• (b)

  the applicant is a member of the family unit of the holder of a student visa or entry permit who commenced to undertake his or her course on or after 1 February 1991.

 “(6) A student (category B) visa is subject to:

• (a)

  the terminating condition that the applicant can produce to the Minister evidence of adequate arrangements in Australia for health insurance during the period of validity of the visa or entry permit; and

(b)

the condition referred to in paragraph 23 (4) (a) of the Act.

English language test

 “98F. (1)  If, under paragraph 98D (2) (b), the Minister has regard to the applicant’s comprehension of the English language for the purposes of the applicant’s course, the Minister may require the applicant to undertake an English language test that is conducted by an agency other than the Department.

“(2)

If the applicant is required to undertake a test and does not undertake it, or does not pass it, the Minister must not grant the visa applied for.”.

27.   Regulation 108 (Grant of visa or entry permit to certain dependants)

27.1   Omit the regulation, substitute:

Grant of visa or entry permit to family unit members

“108.

(1)  In this regulation, ‘principal person’ means a person:

(a)

who is;

 (i) an applicant for a visa or an entry permit; or

 (ii) the holder of:

 (A) a valid temporary entry permit; or

 (B) an entry visa operating as a temporary entry permit; or

 (C) a visa which would permit the applicant to enter Australia on a temporary basis; or

 (D) a valid diplomatic visa; and

• (b)

  who is applying for, or holds, the visa or entry permit other than under this regulation.

“(2)

This regulation applies to an applicant who is a member of the family unit of a principal person and who applies for a visa or entry permit of the same class as that held, or applied for, by the principal person, where:

• (a) 

  the principal person has satisfied the prescribed criteria for the relevant class of visa or entry permit; and

(b)

the applicant:

 (i) is included in the principal person’s application; or

 (ii) applies at the same time as the principal person; or

 (iii) is lawfully in Australia as a member of the family unit of the principal person; or

 (iv) did not accompany the principal person when that person entered Australia and intends to join the principal person as a member of that person’s family unit; and

 (c) if sponsorship is a prescribed criterion for a visa or entry permit of the class applied for, or held by, the principal person—the applicant is also sponsored; and

• (d)

  if sponsorship is not a prescribed criterion for a visa or entry permit of the class applied for—the principal person produces to the Minister evidence that he or she will have adequate means to support the applicant during the period of validity of the visa or entry permit, having regard to any rights the applicant and principal person may have to work in Australia during that period; and

• (e)

  if the application is for a diplomatic visa—the Minister for Foreign Affairs and Trade has recommended in writing that the visa be granted; and

• (f)

  if the application is for an occupational trainee visa or entry permit:

   (i) the Minister for Employment, Education and Training supports the application; and

   (ii) the applicant produces to the Minister evidence of adequate arrangements in Australia for health insurance during the validity of the visa or entry permit.

“(3)

Subject to subregulations (5) and (6), in spite of any prescribed criteria for a visa or entry permit of the class applied for, or held, by the principal person in relation to an applicant to whom this regulation applies, that applicant is, upon satisfying the criteria prescribed under subregulation (4), entitled to be granted a visa or entry permit of that class.

“(4)

The following criteria are prescribed for an application under this regulation for a visa or entry permit, namely, the applicable public interest criteria, the applicable prescribed criteria in relation to health and any other criteria applicable to the applicant.

 “(5) Where a member of the family unit of a principal person is entitled to be granted a visa or entry permit under subregulation (3), the visa or entry permit must not be granted unless a visa or entry permit of the same kind has already been granted to the principal person.

“(6)

This regulation does not apply if the principal person is:

• (a)

  an applicant for, or the holder of:

 (i) a medical treatment visa or entry permit; or

 (ii) a domestic worker (diplomatic or consular) visa or entry permit; or

 (iii) a domestic worker (overseas executive) visa or entry permit; or

 (iv) a student visa or entry permit; or

 (v) a working holiday visa or entry permit; or

(b)

the holder of a PRC (temporary) visa or entry permit.”.

28.   Regulation 115 (Grant of visa to enable re-entry to Australia)

28.1   Subparagraph 115 (1) (c) (iii):

Add at the end “or”.

28.2   Paragraph 115 (1) (c):

After subparagraph 115 (1) (c) (iii), insert:

 “(iv) is the holder of a student visa or entry permit granted before 1 February 1991;”.

29.   Regulation 120 (Grant of temporary entry permit (other than working holiday entry permit) to holders of visitor visa, visitor entry permit or prescribed temporary entry permit)

29.1   Paragraph 120 (c):

Omit “and”, substitute “and, except in the case of an applicant referred to in paragraph (fa),”.

29.2   After paragraph 120 (f), insert:

• “(fa)

  the applicant, being an applicant for a medical treatment entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent;

• (fb)

  the applicant, being an applicant for an occupational trainee temporary entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent;”.

29.3

 Paragraph 120 (g):

After “retirement entry permit”, insert “, a medical treatment entry permit or an occupational trainee entry permit”.

30.   Regulation 121 (Grant of temporary entry permit to holders of working holiday visa or entry permit or of prescribed temporary entry permit)

30.1   Paragraph 121 (c):

Omit “and”, substitute “and, except in the case of an applicant referred to in paragraph (g),”.

30.2   Paragraph 121 (e):

Omit “resident entry”, substitute “resident entry permit other than a working holiday entry permit, an occupational trainee entry permit or a medical treatment entry”.

30.3   Subparagraph 121 (f) (ii):

Omit “permit or a visitor entry”.

30.4   Add at the end:

• “(g)

  the applicant, being an applicant for a medical treatment entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent;

• (h)

  the applicant, being an applicant for an occupational trainee temporary entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent;”.

31.   Regulation 122 (Grant of temporary entry permit to holders of student visas or entry permits, or of prescribed temporary entry permits)

31.1   Omit all the words from and including “private subsidised student entry visa” to and including “(formal course)”, substitute “student visa operating as an entry permit or a student”.

31.2   Paragraph 122 (c):

Omit “and”, substitute “and, except in the case of an applicant referred to in  paragraph (f),”.

31.3   Sub-subparagraph 122 (e) (i) (B):

Omit the sub-subparagraph, substitute:

 “(B) in the case of an assisted student (other than a student described in paragraph (a) of the definition of ‘assisted student’ in subregulation 2 (1))—has the support of AIDAB for the grant of the entry permit;”.

31.4   Subparagraph 122 (e) (ii):

After “resident entry”, insert “permit, other than an occupational trainee entry permit or a medical treatment entry”.

31.5   Sub-subparagraph 122 (e) (ii) (A):

After “formal”, insert “or category A”.

31.6   Subparagraph 122 (e) (ii):

After sub-subparagraph 122 (e) (ii) (D), insert:

 “(DD) if the applicant is a student approved by AIDAB or an EMSS student, has the support of AIDAB for the grant of the entry permit; and”.

31.7   Sub-subparagraph 122 (e) (ii) (D):

Omit “the holder of a private subsidised student entry permit—”, substitute “a private subsidised student—”.

31.8   Sub-subparagraph 122 (e) (iii) (A):

Omit the sub-subparagraph, substitute:

 “(A) in the case of an applicant other than an applicant referred to in sub-subparagraph (B), satisfies the prescribed criteria for the class of visa to which the entry permit is equivalent; and”.

31.9   Sub-subparagraph 122 (e) (iii) (B):

Omit the sub-subparagraph, substitute:

  “(B) in the case of an applicant enrolled in a formal course or a category A course, satisfies the Minister that, in connection with that course of study or with a matter arising from that course of study, the relevant educational institution requires the applicant to remain in Australia during the marking of a post-graduate thesis or that he or she is required to gain practical employment experience after graduation to obtain registration in a profession in which registration is a prerequisite for the practice of the profession in the applicant’s usual country of residence; and”.

31.10   Sub-subparagraph 122 (e) (iii) (C):

Omit “produces”, substitute “if the applicant is an assisted student, produces to the Minister”.

31.11   Sub-subparagraph 122 (e) (iii) (D):

Omit the sub-subparagraph, substitute:

  “(D) produces to the Minister evidence that he or she has adequate financial support for the period of his or her intended stay in Australia; or

 (iv) being an applicant for an occupational trainee entry permit:

 (A) is the holder of a trainee (non-formal course ) visa or entry permit; and

 (B) obtained that visa or entry permit because he or she was a trainee; and

 (C) satisfies the prescribed criteria for an occupational trainee visa;

• (f)

  the applicant, being an applicant for a medical treatment entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent.”.

31.12   Add at the end of the regulation:

“(2)

An applicant referred to in subparagraph (1) (e) (iii):

• (a)

  who is the holder of one of the following kinds of entry permit or entry visa operating as an entry permit:

 (i) trainee (non-formal course); or

 (ii) trainee (English language); or

 (iii) student (restricted); or

 (iv) student (category b) granted because the course to be under taken was approved under subparagraph  98d (1) (a) (i) or (ii); and

• (b)

  who has substantially complied with the requirements of the course for which the entry permit was granted;

  is eligible for a further student (category B) entry permit:

 (c) to complete the course for which the entry permit was initially granted; or

• (d)

  for one further course of study referred to in subparagraph 98d (1) (a) (i), (ii) or (iii).

 “(3)  An applicant referred to in subparagraph (1) (e) (iii):

 (a) who is the holder of a student (category B) entry permit or entry visa operating as an entry permit; and

• (b)

  who was granted that entry permit or visa to undertake course of study referred to in subparagraph 98D (1) (a) (iii); and

 (c) who has substantially complied with the requirements of the course for which the entry permit was granted;

is eligible for a further student (category B) entry permit:

• (d)

  to complete the course for which the entry permit was initially granted; or

 (e) for one further course of study referred to in subparagraph 98d (1) (a) (i) or (ii).

“(4)

An applicant referred to in subparagraph (1) (e) (iii) who is the holder of a student (category A) entry permit, or entry visa operating as an entry permit, granted for a prerequisite course of study referred to in subparagraph 98B (1) (a) (ii) is eligible for a further student (category A) entry permit to undertake the prerequisite course only if the total period of stay in Australia (namely, the initial period of stay granted plus the extension of stay sought ) does not exceed 12 months.

 “(5)  Where the applicant for the entry permit:

 (a) is a member of the family unit of an applicant referred to in subparagraph (1) (e) (iii); and

• (b)

  is:

   (i) the holder of a student entry permit granted before 1 February 1991; or

   (ii) the holder of a dependent (subsequent entry) entry permit; and

 (c) is a member of the family unit of a student:

 (i) who holds a student (category B) visa or entry permit; and

 (ii) who is not a citizen of a country specified by notice in the Gazette as a country to which paragraph 98D (3) (a) applies;

the applicant does not need to meet the criteria referred to in sub-subparagraph 98D (3) (a) (ii) (E), (F) or (G).

• “(6)

  Subparagraph  (1) (e) (iii) does not apply if:

 (a) the applicant holds a student visa or entry permit because he or she satisfied the criteria referred to in subregulation 98B (2) or 98D (3); and

• (b)

  immediately before being granted that visa or entry permit, the applicant was the holder of:

 (i) a visitor visa or entry permit; or

 (ii) a temporary resident visa or entry permit; or

 (iii) a student visa or entry permit because he or she was a student; and

 (c) the applicant is applying for the visa of entry permit under subregulation 98B (1) or 98D (1).”.

32.   Regulation 123 (Grant of visitor or student entry permit to holders of certain student visas or entry permits or of prescribed temporary entry permits)

32.1   Omit the regulation.

33.   Regulation 123A (Holders of trainee (English language), or trainee (non-formal course), entry permits or of certain prescribed temporary entry permits— temporary provisions)

33.1   Omit the regulation.

34.   Regulation 123B (Continuing student whose temporary entry permit or visa operating as a temporary entry permit has expired)

34.1   Omit “to which regulation 122, 123 or 123A applies”, substitute “referred to in regulation 122, or regulation 123 or 123A as in force before 1  February 1991,”.

35.   Regulation 125 (Prescribed criteria for grant of temporary entry permit to lawful temporary residents or holders of prescribed temporary entry permits)

35.1   Omit “or a valid temporary resident entry permit, or a”, substitute “temporary resident entry permit, border entry permit or”.

35.2   Paragraph 125 (c):

Omit “and”, substitute “and, except in the case of an applicant for a medical treatment entry permit,”.

35.3   Add at the end:

• “(f)

  if:

   (i) sponsorship is a criterion for the grant of the visa or entry permit; and

   (ii) the grant of the entry permit would allow the applicant a total period of stay in Australia of more than 4 months:

 the applicant produces to the Minister evidence of sponsorship;

• (g)

  the applicant:

   (i) is the holder of an occupational trainee entry permit; and

•  (ii) is not applying for an entry permit other than an occupational trainee entry permit.”.

36.   Regulation 125B (Grant of a temporary entry permit to certain students)

36.1   Omit the regulation.

37.   Regulation 128 (Extended eligibility (economic) entry permit)

37.1   Subparagraph 128 (1) (a) (iii):

Omit “either:”, substitute “is any of the following:”.

37.2   Sub-subparagraph 128 (1) (a) (iii) (A):

Omit “has held one or more than one temporary entry permit”, insert “a person who has held 1 or more than 1 temporary entry permit, or visa operating as a temporary entry permit,”.

37.3   Sub-subparagraph 128 (1) (a) (iii) (A):

Omit “working holiday,”.

37.4   Sub-subparagraph 128 (1) (a) (iii) (B):

Omit the sub-subparagraph, substitute:

 “(B) is the holder of a valid student entry permit, or student visa operating as a student entry permit, granted in relation to a formal course, or a category A course, completed by the applicant while the holder of that entry permit, and is not a category B student, an assisted student, an exchange student a non-formal course student or an occupational trainee; or”.

37.5   Sub-subparagraph 128 (1) (a) (iii) (C):

Omit the sub-subparagraph, substitute:

 “(C) the holder of a working holiday entry permit or visa operating as a working holiday entry permit; or”.

37.6   Subparagraph 128 (1) (a) (iii):

Add at the end:

 “(D) the holder of a student entry permit or visa operating as a student entry permit who is a citizen of the People’s Republic of China who entered Australia on or before 20 June 1989 and who was in Australia on that day; and”.

37.7   After subregulation (1), insert:

 “(1A) Subparagraph (1) (a) (i) does not apply to a person:

• (a)

  who:

 (i) is a citizen of the People’s Republic of China; and

 (ii) entered Australia on or before 20 June 1989 for the purpose of engaging in training or study; and

 (iii) was in Australia on that day; or

• (b)

  who:

 (i) is the holder of a valid student entry permit or student visa operating as a student entry permit; and

 (ii) is not an assisted student, a category B student, an exchange student, a non-formal course student, an occupational trainee or a trainee; or

• (c)

  who is a family unit member of a person referred to in  paragraph (a) or (b).”.

38.   Regulation 139 (Skilled occupation entry permit)

38.1   Subparagraph 139 (1) (c) (iii):

Omit “either:”, substitute “is any of the following:”.

38.2

 Sub-subparagraph 139 (1) (c) (iii) (A):

Omit “has held one or more than one temporary entry permit”, insert “a person who has held one, or more than one, temporary entry permit or visa operating as a temporary entry permit,”.

38.3   Sub-subparagraph 139 (1) (c) (iii) (A):

Omit “working holiday,”.

38.4   Sub-subparagraph 139 (1) (c) (iii) (B):

Omit the sub-subparagraph, substitute:

 “(B) is the holder of a valid student entry permit, or student visa operating as a student entry permit, granted in relation to a formal course, or a category A course, completed by the applicant while the holder of that entry permit, and is not a category B student, an assisted student, an exchange student a non-formal course student or an occupational trainee; or”.

38.5   Sub-subparagraph 139 (1) (c) (iii) (C):

Omit the sub-subparagraph, substitute:

 “(C) the holder of a working holiday entry permit or visa operating as a working holiday entry permit; or

 (D) the holder of a student entry permit or visa operating as a student entry permit who is a citizen of the People’s Republic of China who entered Australia on or before 20 June 1989 and who was in Australia on that day; and”.

38.6   After subregulation (1), insert:

 “(1A) Subparagraph (1) (c) (i) does not apply to:

• (a)

  a person who:

 (i) is a citizen of the People’s Republic of China; and

 (ii) entered Australia on or before 20 June 1989 for the purpose of engaging in training or study; and

 (iii) was in Australia on that day; or

• (b)

  who:

 (i) is the holder of a valid student entry permit or student visa operating as a student entry permit; and

 (ii) is not an assisted student, a category B student, an exchange student, a non-formal course student, an occupational trainee or a trainee; or

• (c)

  a person who is a family unit member of a person referred to in  paragraphs (a) and (b).”.

39.   Regulation 185 (Fee on application for temporary entry permit granted only in Australia)

39.1   Subregulation 185 (1):

Omit “125B”, substitute “125A”.

39.2   After paragraph 185 (2) (b), insert:

• “(bb)

  in the case of an application by an applicant referred to in paragraph 120 (h) for an entry permit as:

 (i) an assisted student; or

 (ii) a student approved under an overseas students training scheme approved by the Commonwealth, other than the EMSS or a scheme administered by AIDAB:

 no fee; or”.

39.3   After paragraph 185 (3) (b), insert:

• “(bb)

  in the case of an application by an applicant referred to in subparagraph 121 (f) (ii) for an entry permit as:

 (i) an assisted student; or

 (ii) a student approved under an overseas students training scheme approved by the Commonwealth, other than EMSS or a scheme administered by AIDAB:

 no fee; or”.

39.4   After paragraph 185 (4) (a), insert:

• “(aa)

  in the case of an application for a student (category A) entry permit by the holder of a student entry permit the application for which was lodged not more than 6 months before first-mentioned application—no fee; or”.

39.5   Paragraph 185 (4A) (b):

Add at the end “and”.

39.6   Subregulation 185 (4A):

Add at the end:

• “(c)

  the application is for an entry permit as:

 (i) an assisted student or an exchange student; or

 (ii) a student approved under an overseas students training scheme approved by the Commonwealth, other than the EMSS or a scheme administered by AIDAB.”.

39.7   Subregulation 185 (5):

Omit the subregulation.

39.8   Subregulation 185 (5A):

Omit the subregulation.

39.9   Subregulation 185 (7):

Omit “,125B”.

39.10   Paragraph 185 (7A) (b):

Add at the end “or”.

39.11   After paragraph 185 (7A) (b), insert:

• “(c)

  an application to which subparagraph 125 (e) (iii) applies that is for an entry permit as:

 (i) an assisted student; or

 (ii) a student approved under an overseas students training scheme approved by the Commonwealth, other than the EMSS or a scheme administered by AIDAB;”.

40.   Regulation 191 (Fee on application for visa to enable re-entry to Australia)

40.1   Paragraph 191 (a):

Omit “14 to 28 inclusive or 30 to 50 inclusive”, substitute “14, 16 to 28 (inclusive), 30 to 38 (inclusive), 45 to 50 (inclusive), 80, 81 and 82”.

40.2   After paragraph 191 (a), insert:

• “(aa)

  in the case where the applicant holds a student visa or entry visa granted before 1 February 1991—a fee equal to the fee payable under Part 1 in Schedule 8 for the student visa applied for; or”.

40.3   Paragraph 191 (b):

Omit “14 to 28 inclusive or 30 to 50 inclusive”, substitute “14, 16 to 28 (inclusive), 30 to 38 (inclusive), 45 to 50 (inclusive), 80, 81 and 82”.

41.   Regulation 197 (Fees—trainee (English language) visa)

41.1   Omit the regulation.

42.   Regulation 198 (Fees—trainee (non-formal course) visa)

42.1   Omit the regulation.

43.   Regulation 199 (Fees—student (restricted) visa)

43.1   Omit the regulation.

44.   New Regulations 202 and 203

44.1    After regulation 201 insert:

Fees—student (category A) visa

“202. There is payable on application for a student (category A) visa:

• (a)

  if the applicant is:

 (i) an assisted student; or

 (ii) an exchange student; or

 (iii) a student approved under an overseas students training scheme approved by the Commonwealth, other than the EMSS or a scheme administered by AIDAB; or

 (iv) a family unit member of a student referred to in subparagraph (i), (ii) or (iii):

 no fee; or

(b)

in any other case—$100.”

Fees—student (category B) visa

“203.

There is payable on application for a student (category B) visa:

• (a)

  if the applicant is:

   (i) a student approved under an overseas students training scheme approved by the Commonwealth, other than the EMSS or a scheme administered by AIDAB; or

 (ii) a family unit member of such a student:

 no fee; or

• (b)

  if the applicant is:

   (i) a student undertaking a training course approved by the Department of Defence; or

 (ii) a family unit member of such a student:

 no fee; or

(c)

if the application is for a visa referred to in regulation 115:

 (i) if the applicant is a person referred to in paragraph (a) or (b):

 no fee; or

 (ii) in any other case—$100; or

 (d) if the applicant is:

 (i) a citizen of a country specified by the Minister by notice in the Gazette as a country to which paragraph 98D (3) (a) applies; or

 (ii) undertaking a course of study paid for, wholly or in part, by the government of his or her home country or by an inter-governmental agency; or

 (iii) a family unit member of a student to whom subparagraph (i) or (ii) applies:

 $100; or

 (e) in any other case—$230.”.

45.   Schedule 2 (Classes of visas, prescribed criteria and code numbers)

45.1   Part 1:

Omit items 15, 39, 40, 41, 42, 43, 44 and 56.

45.2   Part 1:

After item 57, insert:

“58 student (category A) (a) the criteria specified in

  regulation 98B 560

 

(b)

 B1, D, H, K

 59 student (category B) (a)   the criteria specified in

  regulation 98D 561

 

(b)

 B1, D, H, K

 60 occupational trainee (a)   the criteria specified in

  regulation 87B 442”.

 

(b)

 B1, D, H, K

  

46.   Schedule 3 (Classes of entry permits)

46.1   Class 2 entry permi—temporary resident:

Omit item 57.

46.2   Class 2 entry permit—temporary resident:

After item 59A, insert:

“59B occupational trainee 442”.

46.3    Class 3 entry permit—student:

Omit items 60 to 66 (inclusive), substitute:

“66A  student (category A) 560

 66B  student (category B) 561”.

  

47.   Schedule 5 (Mandatory conditions for grant of visas and entry permits)

47.1   Item 1 :

Omit “14 to 28 (inclusive), 30 to 50 (inclusive), 56,”, substitute:

“14, 16 to 28 (inclusive), 30 to 38 (inclusive), 45 to 50 (inclusive), 58, 59 and 60”.

 

47.2   Item 3:

Omit “, 56”.

 

47.3  Item 5 :

Omit “39 to 44 (inclusive)”, substitute “60”.

 

47.4  Item 11:

Omit “39 to 42 (inclusive), 43, 44, 56”, substitute “60”.

47.5  After item 11, insert:

“12 58 conditions referred to in

 paragraph 16 (8) (g)

 13 59 conditions referred to in

 paragraph 27 (3) (f)”.

  

48.   Schedule 8 (Fees)

48.1Part 1:

Omit items 15 39, 40, 41, 42, 43, 44 and 77.

48.2   Part 1:

After item 79, insert:

“80  student (category A)the fee ascertained under regulation 202

 81 student (category B)the fee ascertained under regulation 203

 82 occupational trainee $30”.

______________________________________________________

NOTES

1  Notified in the Commonwealth of Australia Gazette on 14 February 1991.

 

2. Statutory Rules 1989 No. 365 as amended by 1989 Nos. 414 and 416; 1990 Nos. 1, 34, 69, 75, 109, 204, 237, 242, 251, 261, 272, 279, 320, 339, 371, 402 and 452; 1991 Nos. 2 and 8.