Migration Regulations (Amendment) 1997 No. 288
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 288
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Regulations (Amendment)
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, regulations may be made pursuant to the following powers:
- subsection 29(2) of the Act provides that the Regulations may prescribe a period during which the holder of a visa may travel to, enter and remain in Australia;
- subsection 29(3) of the Act provides that the Regulations may prescribe a period during which the holder of a visa may travel to, enter, re-enter and remain in Australia;
- subsection 31(1) of the Act provides that the Regulations are to prescribe classes of visas;
- subsection 31(3) of the Act provides that the Regulations may prescribe criteria for visas of a specified class;,
- subsection 31(4) of the Act provides for the Regulations to prescribe whether visas are visas to travel to and enter, or remain in Australia, or both;
- subsection 40(1) of the Act provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;
- 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 further visa cannot be granted and a condition restricting work rights;
- subsection 45(1) of the Act provides that a non-citizen who wants, a, visa must apply for a visa of a particular class;
- subsection 45(2) of the Act provides that, without limiting the generality of subsection 45(1), the Regulations may prescribe the way for making applications in specified circumstances, applications for a visa of a specified class and applications for visas in specified circumstances for visas of a specified class;
- subsection 45(3) of the Act provides that, without limiting the generality of subsection 45(1), the Regulations may provide for the place in which an applicant must be when an application for a visa of a specified class is made; and
- 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.
The purpose of the Regulations is to amend the Migration Regulations to reflect recent Government decisions to introduce measures to ensure the effective operation of the Migration Program so that it accurately meets the Government's priorities for immigration in Australia. In particular, the Regulations:
- provide that applicants for Subclass 456 (Business (Short Stay)) visas and Independent Executive applicants for Subclass 457 (Business (Long Stay)) visas:
* are outside Australia at time of application and that their visa applications are lodged outside Australia (subregulations 3.1 to 3.3, 6.1, 6.3 to 6.10 and 6.12); and
* have relevant qualifications and background (subregulation 6.2 and regulation 7);
- enable grant of a Subclass 456 visa for 12 months with multiple 3 month entries (subregulation 6.11);
- ensure that persons who are already subject to work condition 8112 (prohibiting work that might otherwise be carried out by an Australian citizen or Australian permanent resident) will continue to be subject to that condition during the processing of their substantive visa applications, when granted a bridging visa A or B. Bridging visas A and B are temporary visas which ensure that the applicant retains his or her legal status during the processing of the application for a substantive visa (regulations 4 and 5); and
- ensure that onshore applicants for Subclass 457 Business (Long Stay) visas are automatically taken to have applied for bridging visas (subregulations 3.4 to 3.6).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 November 1
ATTACHMENT
Regulation 1 - Commencement
These Regulations commence on 1 November 1997.
Regulation 2 - Amendment
The Migration Regulations are amended as set out in these Regulations.
Regulation 3 - Schedule 1 (Classes of visas)
Subregulations 3.1 to 3.3 amend item 1223A of Schedule 1 to provide that applicants for a Temporary Business Entry (Class UC) visa who wish to remain in Australia for 3 months or less (Subclass 456 visas) must be outside Australia at the time of application and their application must be lodged outside Australia.
In addition, an applicant who is an independent executive under subclause 457.223(7), must be outside Australia at the time of application and the application must be lodged outside Australia.
These amendments are made to address concerns arising from:
* a significant increase in applications onshore by independent executives for a Subclass 457 visa by holders of Subclass 456 (Business (Short Stay)) visas recently arrived from high risk countries to which there is little incentive to return;
* applications aggressively marketed by migration agents where the proposal has little in common with the applicant's background;
* difficulties for decision makers rejecting marginal applications where there is no link between the background and personal attributes of the applicant and the nature of the proposed business in Australia.. This occurs because the criteria are entirely prospective and little emphasis is given in the regulations to how the applicant's past achievements and personal attributes will contribute to their capacity to achieve their plans;
* difficulties associated with testing the bona fides of applicants when such assessments are resource intensive and the expertise to do so is in the applicant's home country,
* use of the Subclass 456 visa as a work visa via seeking extensions once in Australia; and
* little capacity to reject applications where there is minimal need for the applicant to visit Australia or hold temporary residence to conduct the business.
Subregulation 3.1 omits provisions specifying the first instalment of the visa application charge for an application for a Temporary Business Entry (Class UC) visa in the case of an applicant who wishes to remain in Australia for 3 months or less where the applicant is applying in Australia. Amendments made by subregulation 3.2 require such applicants to be outside Australia.
Subregulation 3.2 omits paragraphs 1223A,(3)(a) and (b) which provided that an application for a Temporary Business Entry (Class UC) visa could be made in or outside Australia and specified provisions for where the application is lodged by an approved nominator under the Nominated Temporary Business Entry Scheme (NTBE).
Subregulation 3.2 also substitutes paragraphs (a), (aa), (ab), (ac) and (b) which provide as follows:
Paragraph (a): an applicant for a Temporary Business Entry (Class UC) visa who wishes to remain in Australia for 3 months or less (Subclass 456 visas), must, subject to paragraph (ac), be outside Australia at the time of application and the application must be lodged outside Australia.
Paragraph (aa): an applicant for a Temporary Business Entry (Class UC) visa who wishes to remain in Australia for more than 3 months (Subclass 457 visas). may, subject to paragraph (ab), be, in or outside Australia at the time of application and the application may be lodged in or outside Australia.
Paragraph (ab): this paragraph provides an exception to paragraph (aa) - an applicant who wishes to remain in Australia for more than 3 month's (Subclass 457 visas), as an independent executive (subclause, 457.223(7)), must be outside Australia at the time of application and the application must be lodged outside Australia.
Paragraph (ac): this paragraph provides an exception to paragraph (a), where the application is lodged by an approved nominator under the NTBE. In this case, an application must be lodged in Australia by the nominator on the applicant's behalf.
Paragraph (b): this paragraph picks ' up the current, subparagraph 1223A(3)(b)(v) providing for combined applications with spouses and children where the visa sought is for a stay in Australia of 3 months or less (Subclass 456).
Subregulation 3.3 omits paragraph 1223A(3)(d) as it is now coveted by new paragraph 1223A(3)(a).
Subregulations 3.4 to 3.6 amend subitems 1301(1), 1303(1) and 1305(1) to include a reference to application form 1066.
The purpose of this amendment is to ensure that an onshore application for a Temporary Business Entry (Class UC) visa by an applicant who wishes to remain in Australia for more than 3 months (Subclass 457 visa), is automatically an application for a bridging visa. This is designed to ensure that the applicants continue to be lawful non-citizens during the processing of their applications.
Regulations 4 and 5 - Schedule 2, Part 010 (Bridging Visa A) and Part 020 (Bridging Visa B)
Regulations 4 and 5 amend subclauses 010.211(4)(a), 010.611(3) and 020.611(3) to include references to condition 8112.
The purpose of these amendments is to ensure that persons who are already subject to work condition 8112 will continue to be subject to that condition when granted a bridging visa A or B during the processing of their substantive visa application.
Regulation 6 - Schedule 2, Part 456 (Business (Short Stay))
Subregulations 6.1 and 6.3 to 6.10 are consequential upon the amendments made to item 1223A of Schedule 1 to require applicants for Temporary Business Entry (Class UC) visas who wish to remain in Australia for 3 months or less (Subclass 456 visas) to be outside, Australia at time of application.
Subregulation 6.2 inserts two new criteria to require that:
* an applicant's personal attributes and business background must be relevant to, and consistent with, the nature of the applicant's proposed business in Australia; and
* the applicant demonstrates a need to be in Australia for business purposes.
Subregulation 6.11 substitutes a new clause 456.511 to enable grant of the visa for 12 months
with multiple 3 month entries.
Regulation 7 - Schedule 2. Part 457 (Business (Long Stay))
This regulation inserts two new criteria to require that where the applicant is applying as an independent executive:
* the applicant's, personal attributes and background must be relevant to, and consistent with, the nature of the applicant's proposed business in Australia; and
* the applicant demonstrates a need to be temporarily resident Australia in order to conduct or establish the proposed business.