MIGRATION AMENDMENT REGULATIONS 2003 (NO. 4) 2003 NO. 122

Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2003 (NO. 4) 2003 NO. 122

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 122

Issued by the Minister for Immigration and Multicultural and Indigenous Affairs

Migration Act 1958

Migration Amendment Regulations 2003 (No. 4)

Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the powers listed at Attachment A.

The purpose of the regulations is to amend the Migration Regulations 1994 (the Migration Regulations) with respect to certain visa applications and criteria for grant, visa cancellation, and the fee for seeking review by the Refugee Review Tribunal.

The regulations effect changes to the Migration Regulations so as to:

• amend the criteria for making a valid visa application and for grant, of certain skilled migration visas, to increase the required length of full-time study in Australia to at least 2 years, prescribe the types 'of awards that can be undertaken, require applicants to be present in Australia while studying, exclude courses in English language proficiency, allow reliance on two or more courses where certain circumstances exist, and require that instruction be conducted in English [items 1201-1207, 1301-1313, 1401, 1402 and 1405];

• increase the points awarded under the skills point assessment system where the applicant has completed a higher degree, the applicant's nominated skilled occupation is in the Migration Occupations in Demand List, and where the applicant has an offer of employment in such a skilled occupation [items 1402, 1403 and 1404];

• award points where the applicant can show that he or she has met the requirements for award of a degree, diploma or trade qualification in regional Australia and low population growth metropolitan areas and where specific educational requirements are met [item 1405];

• stipulate to which applications the above changes are to be applied [items 1102 .and 1405];

• enable the Minister to cancel temporary visas and, in limited circumstances offshore, permanent visas, where the visa was obtained as a result of fraudulent conduct [items 1103 and 1104];

• increase the fee from $1,000 to $1,400 for persons who seek review before the Refugee Review Tribunal of a decision to refuse the grant of a Protection Visa, and provide for the extension of the operation of the regulation imposing this fee until 1 July 2005 [items 1105 and 1106]; and

• make minor technical amendments.

Details of the regulations are set out in Attachment B.

The regulations commence on 1 July 2003. Amendments to the Migration Regulations are made 3 times per year. These changes constitute part of the "July Round". Having fixed commencement dates for each of the 3 "rounds" minimises the impact on clients and staff.

0303713A-0306042

ATTACHMENT A

In addition, the following provisions may apply:

• subsection 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class;

• section 46 of the Act deals with when an application for a visa is a valid application. In particular:

- subsection 46(2) provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of this subsection, and under the regulations, the application is taken to have been validly made;

- subsection 46(3) provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application; and

- subsection 46(4) provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application, how and where an application for a visa of a specified class must be made, and where an applicant must be when an application for a visa of a specified class is made;

• section 93 of the Act provides that the Minister shall make an assessment of an applicant's points test score by giving the applicant the prescribed number of points for each prescribed qualification (subsection 93(2) provides that 'prescribed' means prescribed by the regulations in force at the time the assessment is made);

• paragraph 116(1)(g) of the Act-provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder; and

• subparagraph 504(1)(a)(i) 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 regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations.

ATTACHMENT B

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2003 (No. 4).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on 1 July 2003.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Migration Regulations).

Regulation 4 - Transitional

Subregulation 4(1) provides that amendments made by items [1103] and [1104] of Schedule 1 to these Regulations apply to the cancellation of a visa on or after 1 July 2003. Those items insert a new ground under which the Minister may cancel a visa under section 116 of the Migration Act 1958. This provision makes it clear that the power to cancel a visa under that ground applies whether or not the visa was granted before or after the commencement of the new cancellation ground on 1 July 2003.

Subregulation 4(2) provides that the amendments made by item [1102] of Schedule 1 to these Regulations apply in relation to an application for a visa made on or after 1 July 2003. That item inserts new regulations 2.29A to 2.29K. These new provisions are application provisions in respect of changes made by these Regulations to the Schedule 1 and Schedule 2 requirements for certain skilled visas. Those changes require applicants to have a longer period of study in Australia to be eligible for those visas. The application provisions ensure that those changes do not apply to applicants who were undertaking studies in Australia on or before the announcement of the changes on 31 March 2003 and who make their visa application by 1 April 2004. The purpose of this is to not disadvantage applicants who commenced studies on the basis of the regulations requiring a lesser period of study in Australia, and who complete their studies towards the end of 2003 or shortly thereafter.

Subregulation 4(2) also provides that the .amendments made by Parts 2 and 3 of Schedule 1 to the Regulations apply in relation to an application for a visa made on or after 1 July 2003. This is to make clear that the changes to Schedule 1 and Schedule 2 referred to above do not apply to applications lodged before their commencement on 1 July 2003.

Subregulation 4(3) provides that the amendments made by items [1105] and [1106] and Part 4 of Schedule 1 to the Regulations apply to applications made or on after 1 July 2003 and to applications made before that date but not finally determined by that date. Items [1105] and [1106] make changes to the fee for review by the Refugee Review Tribunal and Part 4 makes changes to the skills point assessment schedule.

Schedule 1 - Amendments

Part 1 - Amendments of Parts 2 and 4

Item [1101] - Subregulation 2.26(5), definition of relevant Australian authority, paragraph (b)

This item contains a minor technical amendment. This item substitutes paragraph (b) of the definition of relevant Australian authority in subregulation 2.26(5) with a new paragraph (b) which refers to the current title of the relevant department, that is "the Department of Employment and Workplace Relations".

Item [1102] - After regulation 2.28

This items inserts new regulations 2.29A to 2.29K.

These new provisions are application provisions in respect of changes made by these Regulations to the Schedule 1 and Schedule 2 requirements for certain skilled visas. Those changes require applicants to have a longer period of full-time study in Australia to be eligible for the exemption from the requirement to have recent work experience in a skilled occupation. The application provisions ensure that those changes do not apply to applicants who were undertaking studies in Australia on or before the announcement of the changes on 31 March 2003 and who make their visa application by 1 April 2004. The purpose of this is to not disadvantage applicants who commenced studies on the basis of the regulations requiring a lesser period of study in Australia and who complete their studies towards the end of 2003 or shortly thereafter.

Regulation 2.29A

This new regulation ensures that the changes made by these Regulations to paragraphs 1128BA(3)(i) and (j) of Schedule 1 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29A ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their Class DE visa application, or an application for a Graduate - Skilled (Temporary) (Class UQ) visa, by 1 April 2004.

Regulation 2.29B

This new regulation ensures that the changes made by these Regulations to paragraphs 1128CA(3)(j) and (l) of Schedule 1 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a Skilled - Independent Overseas Student (Residence) (Class DD) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29B ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their Class DD visa application, or an application for a Graduate - Skilled (Temporary) (Class UQ) visa, by 1 April 2004.

Regulation 2.29C

This new regulation ensures that the changes made by these Regulations to paragraph 1212A(3)(h) of Schedule 1 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a Graduate - Skilled (Temporary) (Class UQ) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29C ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their Class UQ visa application by 1 April 2004.

Regulation 2.29D

This new regulation ensures that the changes made by these Regulations to subclauses 134.215(2) and 134.222A(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 134 (Skill Matching) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29D ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29E

This new regulation ensures that the changes made by these Regulations to subclauses 136.213(2) and 136.223A(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 136 (Skilled Independent) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29E ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29F

This new regulation ensures that the changes made by these Regulations to subclauses 137.214(2) and 134.221A(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 137 (Skilled State/Territory-nominated Independent) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29F ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29G

This new regulation ensures that the changes made by these Regulations to subclauses 138.216(2) and 138.225A(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 138 (Skilled -Australian-sponsored) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29G ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29H

This new regulation ensures that the changes made by these Regulations to subclauses 139.217(2) and 134.225A(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 139 (Skilled -Designated Area-sponsored) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29H ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29I

This new regulation ensures that the changes made by these Regulations to subclause 861.213(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 861 (Skilled - Onshore Independent New Zealand Citizen) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29I ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29J

This new regulation ensures that the changes made by these Regulations to subclause 862.216(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29J ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Regulation 2.29K

This new regulation ensures that the changes made by these Regulations to subclause 863.217(2) of Schedule 2 of the Migration Regulations do not apply to certain persons. Those changes require applicants for a subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen) visa to have completed at least 2 years, rather than 1 year, of full-time studies in Australia.

New regulation 2.29K ensures that this change does not apply to persons who were studying full-time in Australia on or before 31 March 2003 (the date upon which the change was announced) and who lodge their visa application by 1 April 2004.

Item [1103] - Sub-subparagraph 2.43(1)(n)(ii)(B)

This item makes a technical amendment to sub-subparagraph 2.43(1)(n)(ii)(B) consequential to the insertion of new paragraph 2.43(1)(o) by these Regulations.

Item [1104] -After paragraph 2.43(1)(n)

This item inserts new paragraph 2.43(o), to provide a new prescribed ground of cancellation under paragraph 116(1)(g) of the Act.

Section 116(1) gives the Minister a discretion to cancel visas on grounds specified in the section or prescribed in the Regulations. Cancellation of permanent visas is only permitted where the holder is outside Australia and has not been immigration cleared in relation to the visa.

New paragraph 2.43(1)(o) will allow the Minister to exercise this discretion where he reasonably suspects the visa was obtained as a result of fraudulent conduct by any person.

An example of a situation in which this discretion might be exercised is where an employee has acted improperly in the course of a visa grant in return for a benefit or advantage to the employee or another person. It would not be necessary that the fraudulent conduct was committed by the visa holder.

Persons whose visas are cancelled under section 116 on the basis of the new prescribed ground will generally be able to seek merits review of the cancellation decision by the Migration Review Tribunal.

Item [1105] - Subregulation 4.31B(1)

This item amends subregulation 4.31B(1) so that the fee for review by the Refugee Review Tribunal (the RRT) of an RRT-reviewable decision is increased from $1,000 to $1,400. Only unsuccessful review applicants must pay the fee, which is payable only after the RRT has made its decision.

The fee represents partial recovery of the cost to the RRT of making a decision. The cost of making an RRT decision has increased significantly since the fee was first introduced. The fee increase to $1400 restores the broad level of partial cost recovery to that which applied when the fee was initially introduced.

The increased fee will only apply in relation to those who make an application for review on or after 1 July 2003.

The fee will be reviewed by the Joint Standing Committee on Migration in 2005.

Item [1106] - Subregulation 4.31B(5)

Subregulation 4.31B(5) restricts the application of regulation 4.31B to the review of an RRT-reviewable decision where the application for review was made on or after 1 July 1997 and before a certain date. It is effectively a "sunset clause".

This item amends subregulation 4.31B(5) by extending the application of the regulation to the review of an RRT-reviewable decision where the application for review was made on or after 1 July 1997 and before 1 July 2005.

The effect of the amendment is to extend the operation of the regulation for a further two years, to be reviewed by the Joint Standing Committee on Migration in 2005.

Part 2 - Amendments of Schedule 1

Item [1201] - Paragraph 1128BA(3)(i)

This item amends paragraph 1128BA(3)(i) of the Skilled - Australian-sponsored Overseas Student (Residence) (Class DE) visa class in Schedule 1 to the Migration Regulations by inserting a reference to new paragraph 1128BA(3)(ja) in addition to paragraph 1128BA(3)(j). The effect of this amendment is to require that either the applicant or the applicant's spouse, where a combined application has been made, must meet the requirements contained in paragraphs 1128BA(3)(j) and (ja).

Item [1202] - Subparagraph 1128BA(3)(j)(iv)

This item amends subparagraph 1128BA(3)(j)(iv) by removing the conjunction "and" at the end of subparagraph 1128BA(3)(j)(iv). This amendment is consequential to the omission of subparagraph 1128BA(3)(j)(v) by the below item.

Item [1203] - Subparagraph 1128BA(3)(j)(v)

This item omits subparagraph 1128BA(3)(j)(v). The requirements contained in subparagraph 1128BA(3)(j)(v), relating to the completion of an appropriate course conducted in English at an Australian educational institution, are superseded by the amendment made by the item below which inserts new paragraph 1128BA(3)(ja).

Item [1204] - After paragraph 1128BA(3)(j)

This item inserts new paragraph 1128BA(3)(ja). New paragraph 1128BA(3)(ja) requires an applicant to satisfy a series of mandatory educational requirements as part of the criteria contained in item 1128BA for a valid application for a Class DE visa.

New paragraph 1128BA(3)(ja) allows the applicant to rely on either one degree, diploma or trade qualification ("course") or two or more degrees, diplomas or trade qualifications ("courses"). Generally, the period of full-time study required to be shown by the applicant has increased from at least 1 year to at least 2 years.

Where the applicant is relying on only one course, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of at least 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• the course was not a course in English language proficiency;

• the course is relevant to the applicant's nominated skilled occupation; and

• all instruction for the course was conducted in English.

Where the applicant is relying on two or more courses, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of less than 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• prior to completing that course, the applicant completed at least 1 other course for award at an Australian educational institution while present in Australia;

• the 2 or more courses were completed as a result of a combined total at least 2 years full-time study;

• each course relied on by the applicant was completed at the institution at which it was commenced;

• the courses are relevant to the applicant's nominated skilled occupation; and

• all instruction for the courses was conducted in English.

These changes have been introduced so as to prevent applicants from being able to rely on condensed courses offered by educational institutions as a means of facilitating successful applications for skilled visas. The reliance by applicants on such educational qualifications are seen as decreasing employment prospects for visa holders and is contrary to the overall intent of the various skilled visa classes.

Item [1205] - Subparagraph 1128CA(3)(j)(i)

This item amends subparagraph 1128CA(3)(j)(i) of the Skilled - Independent Overseas Student (Residence) (Class DD) visa class in Schedule 1 to the Migration Regulations by increasing the period of full-time study required from at least 1 year to at least 2 years.

The purpose of the amendment made by this item is similar to that in the previous item and more accurately reflects the minimum period of full-time study required to be undertaken in order to complete most Australian doctoral degrees.

Item [1206] - Schedule 1, paragraph 1128CA(3)(l)

Item [1207] - Schedule 1, paragraph 1212A(3)(h)

These items amend Class DD and Graduate - Skilled (Temporary) (Class UQ visa classes in Schedule 1 to the Migration Regulations.

These items substitute paragraphs 1128CA(3)(l) and 1212A(3)(h) with new paragraphs 1128CA(3)(1) and 1212A(3)(h) respectively. New paragraphs 1128CA(3)(1) and 1212A(3)(h) require an applicant to provide satisfactory evidence relating to a series of mandatory educational requirements as part of the criteria for the making of valid application for Class DD and Class UQ visas.

New paragraphs 1128CA(3)(1) and 1212A(3)(h) allow applicants to rely on either one degree, diploma or trade qualification ("course") or two or more degrees, diplomas or trade qualifications ("courses"). Generally, the period of full-time study required to be shown by the applicant has increased from at least 1 year to at least 2 years.

Where the applicant is relying on only one course, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of at least 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• the course was not a course in English language proficiency;

• the course is relevant to the applicant's nominated skilled occupation; and

• all instruction for the course was conducted in English. ,

Where the applicant is relying on two or more courses, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of less than 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• prior to completing that course, the applicant completed at least 1 other course for award at an Australian educational institution while present in Australia;

• the 2 or more courses were completed as a result of a combined total at least 2 years full-time study;

• each course relied on by the applicant was completed at the institution at which it was commenced;

• the courses are relevant to the applicant's nominated skilled occupation; and

• all instruction for the courses was conducted in English.

Part 3 - Amendments of Schedule 2

Item [1301] - Subclause 134.215(2)

Item [13021 - Subclause 134.222A(2)

Item [1303] - Subclause 136.213(2)

Item [1304] - Subclause 136.223A(2)

Item [1305] - Subclause 137.214(2)

Item [1306] - Subclause 137.221A(2)

Item [1307] - Subclause 138.216(2)

Item [1308] - Subclause 138.225A(2)

Item [1309] - Subclause 139.217(21

Item [1310] - Subclause 139.225A(2)

Item [1311] - Subclause 861.213(2)

Item [1312] - Subclause 862.216(2)

Item [1313] - Subclause 863.2170

These items substitute subclauses 134.215(2), 134.222A(2), 136.213(2), 136.223A(2), 137.214(2), 137.221A(2), 138.216(2), 138.225A(2), 139.217(2), 139.225A(2), 861.213(2), 862.216(2), 863.217(2) with new subclauses 134.215(2), 134.222A(2), 136.213(2), 136.223A(2), 137.214(2), 137.221A(2), 138.216(2), 138.225A(2), 139.217(2), 139.225A(2), 861.213(2), 862.216(2), 863.217(2) in Schedule 2 of the Migration Regulations.

The items change the educational qualifications primary applicants for skilled migration visas must hold, in order to be exempt from the need to have work experience in Australia. It applies to the following visa subclasses:

• Subclass 134 (Skill Matching);

• Subclass 136 (Skilled - Independent);

• Subclass 137 (Skilled - State/Territory-nominated Independent);

• Subclass 138 (Skilled - Australian-sponsored);

• Subclass 139 (Skilled - Designated Area-sponsored);

• Subclass 861 (Skilled - Onshore Independent New Zealand Citizen);

• Subclass 862 (Skilled - Onshore Australian-sponsored New Zealand Citizen); and

• Subclass 863 (Skilled - Onshore Designated Area-sponsored New Zealand Citizen).

These requirements allow an applicant to rely on either one degree, diploma or trade qualification ("course") or two or more degrees, diplomas or trade qualifications ("courses").

Where the applicant is relying on only one course, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of at least 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• the course was not a course in English language proficiency;

• the course is relevant to the applicant's nominated skilled occupation; and

• all instruction for the course was conducted in English.

Where the applicant is relying on two or more courses, he or she must meet all of the following requirements:

• the applicant has completed a course for award by an Australian educational institution as a result of less than 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• prior to completing the course, the applicant completed at least 1 other course for award at an Australian educational institution while present in Australia;

• the 2 or more courses were completed as a result of a combined total at least 2 years full-time study;

• each course relied on by the applicant was completed at the institution at which it was commenced;

• the courses are relevant to the applicant's nominated skilled occupation; and

• all instruction for the courses was conducted in English.

The changes will not apply to visa applications made before the commencement of the changes on 1 July 2003. Nor will they apply to applications made between 1 July 2003 and 1 April 2004, provided the applicant was studying full-time in Australia on or before 31 March 2003.

Item [1314] - Subparagraph 881.227(b)(i)

Item [1315] - Paragraph 882.227(a)

These items make technical amendments to subparagraph 881.227(b)(i) and paragraph 882.227(a) consequential to the insertion of new paragraph 1128BA(3)(ja) by these regulations.

Part 4 - Amendments of Schedule 6A

Item [1401] - Paragraph 6A51(e)

This item substitutes paragraph 6A51(e) with new paragraph 6A51(e). Part 5 of Schedule 6A awards points to the applicant where his or her spouse meets the requirements contained in item 6A51 relating to skill qualifications.

New paragraph 6A51(e) provides points to the applicant if his or her spouse is eligible for award of either one degree, diploma or trade qualification ("course") or two or more degrees, diplomas or trade qualifications ("courses"). Generally, the period of full-time study required to be shown has increased from at least 1 year to at least 2 years.

Where only one course is relied upon, the spouse must meet the following requirements:

• the spouse completed a course for award by an Australian educational institution as a result of at least 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• the course was not a course in English language proficiency;

• the course is relevant to the spouse's nominated skilled occupation; and

• all instruction for the course was conducted in English.

Where two or more courses is relied upon, the applicant must show that his or her spouse meets the following requirements:

• the spouse completed a course for award by an Australian educational institution as a result of less than 2 years full-time study at that institution while present in Australia;

• the course was completed in the 6 months immediately before the application was made;

• prior to completing that course, the spouse completed at least 1 other course for award at an Australian educational institution while present in Australia;

• the 2 or more courses were completed as a result of a combined total at least 2 years full-time study;

• each course relied on was completed at the institution at which it was commenced;

• the courses are relevant to the spouse's nominated skilled occupation; and

• all instruction for the courses was conducted in English.

Item [1402] - Items 6A61 and 6A62

This item substitutes items 6A61 and 6A62 with new items 6A61, 6A61A, 6A63 and 6A64 in Part 6 of Schedule 6A to the Migration Regulations.

Part 6 of Schedule 6A awards points to the applicant according to the level of Australian educational qualification for which the applicant has met the requirements for award.

Where the applicant has met the requirements for the award of a doctorate by an Australian educational institution, new item 6A61 increases the period of full-time study required to be undertaken by the applicant from at least 1 year to at least 2 years. The points awarded to an applicant where they meet this standard has been increased by new item 6A61 from 10 to 15 points.

This more accurately reflects the minimum period of full-time study required to be undertaken in order to complete most Australian doctoral degrees. The increase of points awarded reflects the successful labour market performance of visa holders with Australian post-graduate qualifications.

New item 6A61A applies where the applicant has met the requirements for the award of an Australian masters degree or an Australian honours degree (at or above the level of second class division 1 honours) after meeting the requirements for the award of an undergraduate degree as a result of at least 1 year full-time study in Australia. The masters or honours degree and the undergraduate degree are required to be awarded by an Australian educational institution. An applicant who satisfies new item 6A61 A is awarded 10 points.

The amendment made by new item 6A63 increases the period of full-time study an applicant is required to have undertaken at an Australian educational institution from at least 12 months to at least 2 years. Degrees, diplomas or trade qualifications in English language proficiency are excluded as appropriate courses. The requirement that all instruction for the qualification was conducted in English is included. Five points are awarded for meeting this item.

New item 6A64 applies where the applicant has completed the requirements for award of a degree, diploma or trade qualification at an Australian educational institution ("course") as a result of less than 2 years full-time study while the applicant was in Australia. To be entitled to the award of points, the applicant must show that he or she meets the following requirements:

• prior to completing the course, the applicant completed at least 1 other course for award at an Australian educational institution while present in Australia;

• the 2 or more courses were completed as a result of a combined total at least 2 years full-time study; and

• all instruction for the courses was conducted in English.

Five points are awarded to applicants who satisfy new item 6A64. These changes have been introduced so as to prevent applicants from being able to rely on condensed courses offered by educational institutions as a means of facilitating successful applications for skilled visas. The reliance by applicants on such educational qualifications are seen as decreasing employment prospects for visa holders and is contrary to the overall intent of the various skilled visa classes.

Item [1403] - Item 6A71, column 3

This item increases the points awarded where the applicant satisfies item 6A71 from 10 points to 15 points.

Points are awarded under item 6A71 where the applicant has nominated an occupation on the Migration Occupations in Demand List ("MODL") and has an offer of employment in an occupation included on the MODL. The increase of points is a means of opening up opportunities for older applicants whose occupations fall within the MODL and provides greater recognition of the importance of the MODL as a skills targeting mechanism.

Item [1404] - Item 6A72, column 3

This item increases the points awarded where the applicant satisfies item 6A72 from 5 points to 10 points. Points are awarded under item 6A71 where the applicant has nominated an occupation on the Migration Occupations in Demand List ("MODL").

The increase of points is a means of opening up opportunities for older applicants whose occupations fall within the MODL and provides greater recognition of the importance of the MODL as a skills targeting mechanism.

Item [1405] - After Part 9

This item inserts new Parts 10 and 11 into Schedule 6A to the Migration Regulations.

New Part 10 provides for the award of 5 points to applicants who have completed courses following at least 2 years study and residence in regional Australia or low population growth metropolitan areas.

The amendment has been made as a means of encouraging overseas students to study in regional Australia or low population growth metropolitan areas.

New paragraph 6A1001 provides for the grant of points where the applicant meets the following requirements:

• has met the requirements for award of a degree, diploma or trade qualification by an Australian educational institution ("course") specified in a Gazette Notice;

• the course was completed as a result of at least 2 years full-time study at a campus of the educational institution;

• the post code of the campus is specified in the Gazette Notice;

• the award is not for a course in English language proficiency;

• the applicant lived in a part of Australia the post code of which is specified in Gazette notice while the course was undertaken;

• the course was not undertaken by means of distance education.

New paragraph 6A1002 provides for the grant of points where the applicant:

• has completed 2 or more degrees, diplomas or trade qualifications for award at Australian education institutions ("courses") specified in a Gazette Notice, the most recent course being completed as a result of less than 2 years study at a campus of the educational institution;

• the post code of the campus is specified in the Gazette Notice;

• the award is not for a course in English language proficiency;

• the requirements for award of all courses were met as a result of a total of at least 2 years full-time study;

• the courses must be completed at the institution where they were commenced;

• the applicant lived in a part of Australia specified in Gazette notice while the courses were undertaken; and

• the courses were not undertaken by means of distance education.

New Part 11 prescribes how the changes to Schedule 6A made by these Regulations apply to certain applicants.

It ensures that the changes do not disadvantage applicants who applied for the relevant visa before the commencement of the changes on 1 July 2003, or who applied between 1 July 2003 and 1 April 2004 (or applied for a Graduate - Skilled (Temporary) (Class UQ) visa between those dates), and who were studying full-time at an Australian educational institution on or before 31 March 2003 (the date upon which the changes to educational requirements was announced).

New item 6A1101 provides that the amendments to paragraph 6A51(e) do not apply to an applicant who was studying full-time in Australia on or before 31 March 2003, and who applied for the relevant visa (or a Class UQ visa) either before 1 July 2003 or between 1 July 2003 and 1 April 2004, provided the application was not finally determined on or before 1 July 2003. The amendments to paragraph 6A51(e) increased the time the primary applicant's spouse must have studied in Australia for the award of points from at least one year to at least two years.

New items 6A1102 and 6A1103 ensure that certain applicants are assessed against the version of item 6A61 (ie pre-1 July 2003 or post-1 July 2003) most beneficial to them. The items apply to applicants who were studying full-time in Australia on or before 1 March 2003, and who applied for the relevant visa (or for a Class UQ visa) before 1 July 2003, or between 1 July 2003 and 1 April 2004.

New item 6A1104 provides that item 6A62 (omitted by these Regulations) continues to apply to an applicant who was studying full-time in Australia on or before 31 March 2003, and who applied for the relevant visa (or a Class UQ visa) either before 1 July 2003 or between 1 July 2003 and 1 April 2004, provided the application was not finally determined on or before 1 July 2003. It also provides that new items 6A63 and 6A64 do not apply to such persons.

Item 6A62 provided for the award of 5 points to an applicant who had completed the requirements for the award of a degree, diploma or trade qualification by an Australian educational institution after a period of at least 12 months full-time study in Australia.

Item 6A62 is omitted and new items 6A63 and 6A64 inserted by these Regulations. New item 6A63 requires the course completed by the applicant to have involved least 2 years of study in Australia for the award of 5 points. Item 6A64 allows for the award of 5 points where the course involved less than 2 years study if, before completing that course, the applicant completed another course in Australia and the total study time for the two courses equals 2 years or more.