Migration Amendment Regulations 1998 (No. 10) 1998 No. 305
EXPLANATORY STATEMENT
STATUTORY RULES 1998 NO. 305
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 1998 (No. 10)
Section 504 of the Migration Act 1958 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(a) of the Act provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the regulations.
In addition, the regulations may be made pursuant to the following powers:
- section 29 of the Act provides that the Minister may grant a visa to a non-citizen which permits the holder of the visa to travel to and enter, or remain in Australia and that the regulations may prescribe periods of validity of such visas;
- section 31 of the Act provides that the regulations are to prescribe classes of visas and may prescribe criteria for visas of a specified class and whether visas are for travel to and enter, or remain in Australia, or both;
- section 41 of the Act provides that, without limiting the generality of the section, the regulations may provide that visas or visas of a specified class are subject to specified conditions, including but not limited to a condition that a farther visa cannot be granted and a condition restricting work rights;
- section 45 of the Act provides that the Regulations may make provision in relation to applications for visas and may prescribe the way for making applications for a visa of a specified class in specified circumstances, and in specified circumstances for a visa of a specified class; and may provide for the place in which an applicant must be when an application for a visa of a specified class is made;
- section 45B of the Act provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;
- subsection 46(2) of the Act provides for prescribing a class of visas an application for which may be taken under the regulations to have been validly made;
- paragraph 116(1)(g) of the Act provides for the grounds for cancelling a visa to be prescribed; and
- subsection 116(3) of the Act provides for prescribing the circumstances in which the Minister must cancel a visa, provided that circumstances prescribed pursuant to subsection 116(1) exist.
The purpose of the Regulations is to amend the Migration Regulations to implement changes to student visas arising from a recent review to streamline the processing of Student (Temporary) (Class TU) Visas, whilst also establishing mechanisms to ensure the integrity of the student visa program.
In particular the Regulations:
- provide that holders of students will be subject to mandatory cancellation of their visas if they cannot satisfy course requirements (condition 8202) (item 2 and 34);
- provide that holders of student visas subject to condition 8101 may apply for another visa without this condition, if they apply in Australia and pay a visa application charge of $50 and satisfy the relevant Schedule 2 criteria for the grant of a visa (items 3, 4, 9, 10, 14, 15, 24, 26, 27, and 32);
- provide that holders of student visas will also be subject to condition 8206 which will prevent the holder from changing education providers in the first year, however on payment of a visa application charge of $120 holders may be granted a visa without this condition if the Minister is satisfied that there are exceptional reasons for the change (items 3, 4, 9, 10, 20, and 34);
- provide that a Bridging Visa A is granted to applicants applying on forms 157C and 157P (item 5);
- provide that applicants for student visas and members of their family unit, who apply offshore or for the first time in Australia, will have mandatory condition 8101 imposed on their visas (items 17, 19, 21, 25, 29 and 30); and
- make minor technical amendments (items 6 to 8, 12, 13, 18, 22, 23 and 31).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 December 1998.
ATTACHMENT
Regulation 1 - Name of regulations
This regulation provides that these Regulations are the Migration. Amendment Regulations 1998 (No. 10)
Regulation 2 - Commencement
This regulation provides that these Regulations commence on 1 December 1998.
Regulation 3 - Amendment of Migration Regulations
This regulation provides that the Migration Regulations are amended as set out in Schedule 1 to these Regulations.
Schedule 1 - Amendment of Migration Regulations
Item 1 - Regulation 1.03
This item inserts a definition of an "education provider" into regulation 1.03. The definition of an "education provider" in relation to a registered course in a State or Territory means each institution, body or person that is a registered provider of that course in that State or Territory for the purposes of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991.
Item 2 - Subregulation 2.43(2)
This item omits subregulation 2.43(2) and substitutes a new subregulation. New subregulation 2.43(2) provides the circumstances in relation to subsection 116(3) of the Act, in which the Minister must cancel a visa. Those circumstances are;
* each of the circumstances comprising the grounds are set out in paragraphs 2.43(1)(a), (b) and (c);
* in the case of a Student (Temporary) (Class TU) visa, where the Minister is satisfied that the visa holder has not complied with condition 8202.
Item 3 - Schedule 1, paragraph 1222(1)(b)
This item omits paragraph 1222(1)(b) and substitutes a new paragraph. New paragraph 1222(1)(b) provides that if an application is made in Australia for a Student (Temporary) (Class TU) visa, the following forms are prescribed in the following circumstances:
* form 157P, where the applicant is the holder of a Subclass 560 (Student), 562 (Iranian Postgraduate Student) or 563 (Iranian Postgraduate Student Dependant) visa and seeks a Student (Temporary) (Class TU) visa that is not subject to condition 8101;
* form 157C, where the applicant is the holder of a Subclass 560 or 562 visa and seeks a Student (Temporary) (Class TU) visa that is not subject to condition 8206; or
* form 157Y in any other case.
Item 4 - Schedule 1, subparagraph 1222(a)(a)(ii)
This item omits subparagraph 1222(2)(a)(ii) and substitutes new subparagraphs 1222(2)(a)(ii), (iii) and (iv). New subparagraph 1222(2)(a)(ii) provides that the first instalment of the visa application charge payable in respect of an application for a Student (Temporary) (Class TU) visa made on form 157P is $50.
New subparagraph 1222(2)(a)(iii) provides that the first instalment of the visa application charge payable in respect of an application for a Student (Temporary) (Class TU) visa made on form 157C is $120, except where the change in enrolment is due to:
* the intended course being not available
* (in which case no charge is payable).
New subparagraph 1222(2)(a)(iv) provides that the first instalment of the visa application charge payable in respect of an application for a Student (Temporary) (Class TU) visa made on form 157Y is $285.
Item 5 - Schedule 1, subitem 1301(1)
This item amends subitem 1301 (1) of Schedule 1 to the Regulations to include a reference to the new application forms "157P" and "157C" for a Student (Temporary) (Class TU) visa. This ensures that an application made in Australia on those forms are automatically an application for a Bridging Visa A. Grant of a bridging visa will ensure that the applicants for the new visas will be lawful while their applications are being considered.
Item 6 - Schedule 2, subclause 560.212(1) Item 7 - Schedule 2, before paragraph 560.212(2)(a) Item 8 -Schedule 2, before paragraph 560.212(3)(a)
Items 6, 7 and 8 make technical amendments to subclauses 560.212(1), (2) and (3) respectively.
Item 6 recasts old subclause 560.212(1) into new subclauses 560.212(1) and 560.212(1A). This item also amends subclause 560.212(1) to include reference to new subclauses 560.212(4) and (5) inserted by these regulations.
Item 9 - Schedule 2. after subclause 560.212(3)
This item inserts new subclauses 560.212(4) and (5). New subclause 560.212(4) provides that, at the time of application, an applicant meets the requirements of this subclause if:
* the applicant is the holder of a Subclass 560 or 562 visa that is subject to condition 8101;
* the applicant makes a valid application for a Student (Temporary) (Class TU) visa using form 157P; and
* the applicant provides the Minister with evidence that they have commenced a registered course.
New subclause 560.212(5) provides that, at the time of application, an applicant meets the requirements of this subclause if.
* the applicant is the holder of a Subclass 560 or 562 visa that is subject to condition 8206;
* the applicant makes a valid application for a Student (Temporary) (Class TU) visa using form 157C;
* the applicant provides the Minister with evidence that they have commenced a registered course at a education provider that is not the education provider in relation to the course to which the visa held relates; and
* the Minister is satisfied that exceptional circumstances exist justifying the change in enrolment.
Item 10 - Schedule 2, before clause 560.221
This item inserts new clause 560.220 as a criterion to be satisfied at the time of decision. New subclause 560.220(1) provides that unless an applicant met the requirements of subclause 560.212(4) or (5), the applicant must satisfy the criteria specified in clauses 560.221 to 560.231.
New subclause 560.220(2) provides that if an applicant met the requirements of subclause 560.212(4) they meet the requirements of this subclause if:
* the applicant continues to meet the requirements of paragraph 560.212(4)(a); and
* the Minister has no reason to believe that the applicant does not continue to satisfy the criteria mentioned in subclause 560.220(1), other than criterion 560.222, or the applicant satisfies those criteria.
New subclause 560.220(3) provides that an applicant meets the requirements of this subclause if.
* the applicant continues to meet the requirements of paragraphs 560.212(5)(a) and (d); and
* the Minister has no reason to believe that the applicant does not continue to satisfy the criteria mentioned in subclause 560.220(1), or the applicant satisfies those criteria.
Item 11 - Schedule 2, clause 560.23 0
This item omits clause 560.230 and substitutes a new clause. New clause 560.230 provides that if the applicant is not a citizen of a gazetted country, and they met the requirements of clause 560.212 on the basis of having been the holder of a visa of a specified subclass, the applicant must establish exceptional reasons for the grant of a Subclass 560 visa.
Item 12 - Schedule 2, subclause 560.312(1)
Item 13 - Schedule 2, before paragraph 560.312(2)(a)
Items 12 and 13 make technical amendments to subclauses 560.312(1) and (2) respectively.
Item 12 recasts old subclause 560.312(1) into new subclauses 560.212(1) and (1A). This item also amends subclause 560.312(1) to include reference to new subclause 560.312(3) inserted by these regulations.
Item 14 - Schedule 2, after subclause 560.312(2)
This item inserts new subclause 560.312(3). New subclause 560.312(3) provides that, at the time of application, an applicant meets the requirements of this subclause if..
* the applicant is the holder of a Subclass 560 or 563 visa that is subject to condition 8101;
* the applicant makes a valid application for a Student (Temporary) (Class TU) visa using
form 157P;
* the applicant is a member of the family unit of a person who holds a Subclass 560 visa; and
* the applicant provides the Minister with evidence that the person, of whose family they are
a member, has commenced a registered course.
Item 15 - Schedule 2, before clause 560.321
This item inserts new clause 560.320 as a criterion to be satisfied at the time of decision. New clause 560.320 provides that unless an applicant met the requirements of subclause 560.312(3), the applicant must satisfy the criteria specified in clauses 560.321 to 560.228.
New subclause 560.320(2) provides that if an applicant met the requirement of subclause 560.312(3) they continues to meet the requirements of paragraphs 560.312(3)(a) and (c) and either:
* the Minister has no reason to believe that the applicant does not continue to satisfy the criteria mentioned in subclause 560.320(1); or
* the applicant satisfies those criteria.
Item 16 - Schedule 2, clause 560.511
This item omits clause 560.511 and substitutes a new clause. New clause 560.511 permits the holder of a Subclass 560 visa to travel to, enter and remain in Australia;
* if the application is made using form 157P - until the date on which the visa held by the
applicant at the time of the application would have ceased; or
* otherwise - until a date specified by the Minister.
Item 17 - Schedule 2, paragraph 560.611 (1)(a)
This item omits paragraph 560.611(1)(a) and substitutes a new paragraph. New paragraph 560.611(1)(a) provides that the following conditions are imposed on applicants satisfying the primary criteria:
* conditions 8202, 8501 and 8506;
* subject to paragraph 560.611(1)(c), condition 8101;
* subject to subclause 560.611(1A), condition 8206; and
* subject to subclause 560.611(2), condition 8517.
Item 18 -Schedule 2, paragragph 560.611(1)(b)
Item 19 - Schedule 2, after paragraph 560.611(1)(b)
Item 18 makes a minor technical amendment to subclause 560.611(1) as a consequence of item 19.
Item 19 inserts new paragraph 560.611(1)(c) which provides that if, at the time of application, an applicant met the requirements of subclause 560.212(4) or held a student (Temporary) (Class TU) visa that was subject to condition 8105, the applicant will continue to have condition 8105 imposed.
Item 20 - Schedule 2, after subclause 560.611 (1)
This item inserts new clause 560.611(1A). New clause 560.611(1A) provides that condition 8206 does not apply if, at the time of application, the applicant:
* as the holder of a Subclass 560 visa met the requirements of subclause 560.212(5); or
* as the holder of a Subclass 562 visa met the requirements of both clause 560.211 and subclause 560.212(5).
Item 21 - Schedule 2, paragraph 560.613(1)(a)
This item omits paragraph 560.613(1)(a) and substitutes a new paragraph 560.613(1)(a). New paragraph 560.613(1)(a) provides that the following conditions are imposed on all applicants satisfying the secondary criteria;
* conditions 8501 and 8506; and
* subject to subclauses 560.613(1A), (1B) and (!C), condition 8101; and
* subject to subclause 560.613(2), condition 8518.
Item 22 - Schedule 2, paragraph 560.613(0(c)
Item 23 - Schedule 2, paragraph 560.613(1)(d)
Items 22 and 23 amend paragraphs 560.613(1)(c) and 560.613(d) respectively to include reference to new subclauses 560.613(1A) and (1B) respectively.
Item 24 - Schedule 2, after subclause 560.613(1)
This item inserts new subclauses 560.613(1A), 560.613(1B) and 560.613(1C). New subclause 560.613(1A) provides that if, at time of application, the applicant was in Australia as the holder of a Subclass 560 or 563 visa, condition 8101 does not apply if the applicant:
* is a person referred to paragraph 560.613(1)(c); and
* met the requirements of subclause 560.312(3) for a registered course other than a non-award course.
New subclause 560.613(1B) provides that if, at time of application, the applicant was in Australia as the holder of a Subclass 560 or 563 visa, condition 8101 does not apply if the applicant:
* is a person referred to paragraph 560.613(1)(d); and
* met the requirements of subclause 560.312(3) for a registered.
New subclause 560.613(1C) provides that if, at time of application, the applicant was in Australia as the holder of a Subclass 560 or 563 visa, condition 8101 does not apply if the applicant:
* is the member of the family unit of a person enrolled in a course of study or research for a master's degree or a doctorate; and either
* met the requirements of subclause 560.312(3); or
* held a Student (Temporary) (Class TU) not subject to condition 8101.
Item 25 - Schedule 2, clause 562.611
This item omits clause 562.611 and substitutes anew clause to add conditions 8101, 8206 and 8506 to the previous conditions 8202, 8203, 8501 and 8517.
Item 26 - Schedule 2, after clause 563.211
This item omits clause 563.211A and substitutes a new clause. New clause 563.211A applies where the applicant is the holder of a Subclass 563 visa that is subject to condition 8101, and makes a valid application for a Subclass 563 visa using form 157P. Such an applicant meets the requirements of subclause 563.211A if the applicant;
* is a member of the family unit of a person who is the holder of a Subclass 562 visa; and
* provides the Minister with evidence that the person holding the Subclass 562 visa has commenced a registered course.
Item 27 - Schedule 2, before clause 563.221
This item inserts new clause 563.220 as a criterion to be satisfied at the time of decision. New subclause 563.220(1) provides that if an applicant did not satisfy, at the time of application, the criterion in clause 563.211 A, they satisfy the criteria in clauses 563.221 to 563.228.
New subclause 563.220(2) provides that if at the time of application the applicant satisfied the criterion in clause 563.211A, the applicant continues to satisfy the criteria in paragraphs 563.211A(a) and (c) and either;
* the Minister has no reason to believe that the applicant does not continue to satisfy the other criteria mentioned in subclause 563.220(1); or
* the applicant satisfies those criteria.
Item 28 - Schedule 2, clause 563.511
This item omits clause 563.511 and substitutes anew clause. New clause 563.511 permits the holder of a Subclass 563 visa to travel to, enter and remain in Australia:
* if the application is made on form 157P - until the date on which the visa held by the applicant at the time of the application would have ceased; or
* otherwise - until a date specified by the Minister.
Item 29 - Schedule 2, subclause 563.611 (1)
This item omits subclause 563.611(1) and substitutes a new subclause 563.611(1). New subclause 560.611 (1) provides that the following conditions are imposed, in all cases:
* conditions 8101, 8204, 8501 and 8506; and
* subject to subclause 563.611(2), condition 8518.
Item 30 - Schedule 2, paragraph 563.612(1)(a)
This item omits paragraph 563.612(1)(a) and inserts a new paragraph. New paragraph 563.612(1)(a) provides that where the application is made in Australia the following conditions are imposed:
* conditions 8204, 8501 and 8506; and
* subject to subclause 563.612(1A), condition 8101; and
* subject to subclause 563.612(2), condition 8518.
Item 31 - Schedule 2, paragraph 563.612(1)(b)
This item amends paragraph 563.612(1)(b) to include reference to new subclause 563.612(1A).
Item 32 - Schedule 2, after subclause 563.612(1)
This item inserts subclause 563.612(1A). Subclause 563.612(1A) provides that at the time of application condition 8101 does not apply to a visa granted to an applicant who satisfied the criterion of clause 563.211A or held a Subclass 563 visa that was not subject to condition 8101.
Item 33 - Schedule 8, clause 8202
This item omits item 8202 and, substitutes new item 8202 into Schedule 8 to the Regulations.
New item 8202 provides that a condition of the visa is that the holder must;
* be enrolled in a registered course; and
* attend at least 80% of the classes and tutorials scheduled for the course as evidenced by the
education provider by record of attendance or otherwise; and
* if attendance cannot be evidenced, achieve an academic result for the course which is
certified by the education provider, to be at least satisfactory; and
* comply with any requirement of the education provider in relation to the payment of fees
for the course.
Item 34 - Schedule 8. after item 8205
This item inserts new item 8206 into Schedule 8 to the Regulations. New item 8206 provides that a condition of the visa is that the holder of a Student (Temporary) (Class TU) visa must not change his or her enrolment from the original course offered by an education provider to an enrolment in a course offered by another education provider;
* within the first 12 months of the original course if the original course is for 12 months or more; or
* before the end of the original course if the original course is for less than 12 months.