EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 69

 

Minute No. 3 of 2007 - Minister for Immigration and Citizenship

 

Subject - Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 1)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, 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 provisions listed in Attachment A.

 

The purpose of the proposed Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy.

In particular, the proposed Regulations would:

 

·        Schedule 1 - Allow an application for a Bridging E visa to be made at the same time as an onshore application for a Trade Skills Training Visa; and change references to ‘New Apprenticeship Scheme’ to its correct name ‘New Apprenticeships Scheme’, in line with the terminology in Skilling Australia’s Workforce Act 2005;

·        Schedule 2 - Limit the persons who may enter Australia on a Special Purpose Visa, as a Guest of Government, to the official guest of the Australian Government and any accompanying immediate family members; and enable the successful tenderer for provision of onshore medical services (OMS) to also undertake health assessments for carer visas;

·        Schedule 3 - Make Subclass 416 (Special Program) and Subclass 442 (Occupational Trainee) visas more accessible to non-citizens in Australia by simplifying the qualifying-visa requirements for these visas;

·        Schedule 4 - Add the Republic of the Philippines to the list of countries whose forces members and forces civilian component members hold a special migration status by virtue of a SOFA (Status of Forces Agreement) with Australia; and

·        Schedule 5 - Enable the Minister, acting with the approval of the Minister for Education, Science and Training, or the Minister for Employment and Workplace Relations, to specify relevant assessing authorities to carry out offshore skills assessments.

Details of the proposed Regulations are set out in Attachment B.

 

Transitional provisions would clarify which provisions apply to applicants who have applications not finally determined at the time the proposed Regulations would commence.

 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Schedules 1, 2, 3 and 4 to the proposed Regulations would commence on 23 April 2007. This commencement date is a consequence of various systems changes necessary to allow for the implementation of the proposed Regulations.

 

Schedule 5 to the proposed Regulations would commence on 1 July 2007. This commencement date would enable the proposed Regulations to be in place in sufficient time to facilitate the selection process for relevant assessing authorities to assess skills in relevant occupations in respect of residents of particular countries.

 

The Minute recommends that Regulations be made in the form proposed.

 

 

 

 

 

Authority: Subsection 504(1) of the

Migration Act 1958

 

 

ATTACHMENT A

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, 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. Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.

In addition to subsection 504(1) of the Act, the following provisions may apply:

·                Subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class;

 

·                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.

·                Subsection 45(2) of the Act provides that, without limiting subsection 45(1), the regulations may prescribe the way for making:

 

-        an application in specified circumstances; or

 

-        an application for a visa of a specified class; or

 

-        an application in specified circumstances for a visa of a specified class.

 

·        Subsection 504(2) of the Act provides that despite section 14 of the Legislative Instruments Act 2003 the regulations may provide for matters to be specified by the Minister in an instrument in writing made after the commencement of the regulations.

 

ATTACHMENT B

 

Details of the Migration Amendment Regulations 2007 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides that regulations 1 to 6 and Schedules 1 to 4 of these Regulations commence on 23 April 2007, and that regulation 7 and Schedule 5 commence on 1 July 2007.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

 

Subregulation 3(1) provides for the Migration Regulations 1994 (the Principal Regulations) to be amended by Schedule 1 to these Regulations.

 

Subregulation 3(2) provides that the amendments made by Schedule 1 to these Regulations apply in relation to an application for a visa made on or after 23 April 2007.

 

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

 

Subregulation 4(1) provides for the Principal Regulations to be amended by Schedule 2 to these Regulations.

 

Subregulation 4(2) provides that the amendment made by item [1] of Schedule 2 to these Regulations does not apply in relation to a person who entered Australia before 23 April 2007 and has not left Australia.

 

Subregulation 4(3) provides that if a person mentioned in subregulation 4(2) leaves Australia, the amendment made by item [1] of Schedule 2 to these Regulations applies to the person when the person leaves Australia. The effect of this provision is that if a person is in Australia on 23 April 2007 with a prescribed status as the holder of a special purpose visa, the person will retain the special purpose visa until he or she leaves Australia irrespective of the amendments made by Schedule 2. For further details of the relevant amendments, please see the notes on Schedule 2 to these Regulations, below.

 

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

 

Subregulation 5(1) provides for the Principal Regulations to be amended by Schedule 3 to these Regulations.

 

Subregulation 5(2) provides that the amendments made by Schedule 3 to these Regulations apply in relation to an application for a visa made on or after 23 April 2007.

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

 

Regulation 6 provides for the Principal Regulations to be amended by Schedule 4 to these Regulations.

 

The Note advises that there are no transitional arrangements in relation to the amendments made by Schedule 4. This is because there are no existing visas or applications for visas that could be affected by the relevant amendments.

 

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

 

Subregulation 7(1) provides for the Principal Regulations to be amended by Schedule 5 to these Regulations.

 

Subregulation 7(2) provides that the amendment made by Schedule 5 to these Regulations applies in relation to the making or consideration of an application for a skills assessment on or after 1 July 2007.

 

 

Schedule 1 – General Amendments

 

Item [1] – Regulation 1.20UJ, definition of apprenticeship

This item omits the words “New Apprenticeship Scheme” in the definition of apprenticeship in regulation 1.20UJ of Division 1.4E of Part 1 of the Principal Regulations and inserts the words “New Apprenticeships Scheme”.

 

This amendment corrects the wording of the name of the New Apprenticeships Scheme to align with the Skilling Australia’s Workforce Act 2005, and has no substantive effect on the operation of the Principal Regulations.

 

Item [2] – Regulation 1.20UJ, definition of New Apprenticeship Scheme

This item substitutes the definition of New Apprenticeship Scheme in regulation 1.20UJ of Division 1.4E of Part 1 of the Principal Regulations with a new definition.

 

This amendment retains the current definition of New Apprenticeship Scheme but corrects the name of the scheme to New Apprenticeships Scheme to align with the Skilling Australia’s Workforce Act 2005. The amendment has no substantive effect on the operation of the Principal Regulations.

 

Item [3] – Schedule 1, subitem 1305(1)

This item omits the phrase “or 1150E (Internet).” in subitem 1305(1) of Part 3 of Schedule 1 to the Principal Regulations and inserts the phrase “, 1150E (Internet) or 1261.”

The purpose of this amendment is to allow an application to be made for a Bridging E visa (Class WE) at the same time as an onshore application for a Subclass 471 (Trade Skills Training) visa by inserting a reference to the relevant form 1261. The effect of this amendment is that onshore applicants for a Subclass 471 visa who do not hold a substantive visa at time of application will be able to remain lawfully in Australia on a Bridging E visa while their application for a Subclass 471 visa is being processed. Allowing associated Bridging E visa applications to be made at the same time as an onshore application for a Subclass 471 visa was overlooked in the initial implementation of the Trade Skills Training visa.

 

 

Schedule 2 - Amendments relating to guests of Government and carers

Item [1] – Regulation 1.03, definition of guest of Government, paragraphs (b), (c) and (d)

This item substitutes paragraphs 1.03(b), (c) and (d) of the definition of guest of Government in regulation 1.03 in Part 1 of Division 1.2 of the Principal Regulations, with new paragraph 1.03(b).

 

The new paragraph provides that a person is a guest of Government if the person is a member of the immediate family of an official guest of the Australian Government, who is accompanying the official guest. Paragraph 1.03(a) is unchanged.

 

The effect of this amendment is to limit the persons included in the definition of guest of Government to an accompanying member of the immediate family of an official guest of the Australian Government. “Member of the immediate family” is defined in regulation 1.12AA in Part 1 of Division 1.2 of the Principal Regulations as a spouse, dependent child, or parent (if the official guest of the Australian Government is 18 years or more).

 

Prior to this amendment the definition included a spouse, or dependent relative or a member of the personal or official staff or a media representative accompanying the official party of an official guest of the Australian Government.

 

Item [2] – Subregulation 1.15AA(2)

This item substitutes subregulation 1.15AA(2) of Division 1.2 of Part 1 of the Principal Regulations with new subregulation 1.15AA(2).

New subregulation 1.15AA(2) makes provisions regarding acceptable certificates relating to the medical condition and needs of a person for the purposes of the definition of carer. New paragraph 1.15AA(2)(a) provides that a certificate in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing and signed by the medical adviser who carried out the assessment is acceptable. New paragraph 1.15AA(2)(b) provides that a certificate issued by a health service provider specified by the Minister in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by the health service provider in accordance with its procedures, is acceptable.

The effect of new paragraphs 1.15AA(2)(a) and (b) is to substitute a reference to “a health service provider specified by the Minister in an instrument in writing” for previous references to “Health Services Australia”. While Health Services Australia has previously been the health service provider, the relevant contract is due to expire and will be retendered. This amendment will allow the name of the relevant health service provider to be specified by the Minister in an instrument in writing, without any further need to amend the Principal Regulations for any future change in health service provider.

Item [3] – Subregulation 1.15AA(4), definition of Health Services Australia

This item omits the definition of “Health Services Australia” from subregulation 1.15AA(4).

This amendment is a consequential upon the removal of the references to “Health Services Australia” in subregulation 1.15AA(2), by item [2] of the Schedule (please see above).

 

 

Schedule 3 – Amendments relating to Special Program visas and Occupational Trainee visas

 

Item [1] – Schedule 2, clause 416.211

This item substitutes clause 416.211 in Schedule 2 to the Principal Regulations with new clause 416.211.

New clause 416.211 requires applicants in Australia for Subclass 416 (Special Program) visa to hold a substantive visa other than a Subclass 771 (Transit) visa or Special Purpose Visa. For applicants in Australia who do not hold a substantive visa at time of application, new clause 416.211 requires that the last substantive visa they held was not a Subclass 771 (Transit) visa or Special Purpose Visa and that they satisfy additional criteria for grant 3003, 3004 and 3005.

 

The effect of new clause 416.211 is to allow holders or previous holders of most substantive visas to be eligible for the grant of a Subclass 416 (Special Program) visa while onshore, rather than travelling offshore in order to apply for a Subclass 416 visa or applying onshore for one of the qualifying visas previously listed in clause 416.211 of the Principal Regulations.

New clause 416.211 will only prevent holders of a Subclass 771 (Transit) visa or a Special Purpose Visa from being eligible for the grant of a Subclass 416 visa if they apply onshore. Transit and Special Purpose visas are generally granted for restricted purposes and it is not appropriate to allow holders to transfer to other visas onshore.

The effect of new clause 416.211 is also to require all eligible applicants for a Subclass 416 visa who did not who hold a substantive visa at time of application to meet the same Schedule 3 criteria. Previously, applicants who last held certain qualifying visas had to satisfy Schedule 3 criterion 3002 by making a valid application for a Subclass 416 visa within 12 months since last holding the qualifying visa, whereas applicants who last held other qualifying visas had no Schedule 3 time limit imposed upon them.

Item [2] – Schedule 2, clause 442.211

This item substitutes clause 442.211 in Schedule 2 to the Principal Regulations with new clause 442.211.

New clause 442.211 requires applicants in Australia for Subclass 442 (Occupational Trainee) visa to hold a substantive visa other than a Subclass 560 (Student) visa, a Subclass 562 (Iranian Postgraduate Student) visa, a Subclass 563 (Iranian Postgraduate Student Dependant) visa, a Subclass 571 (Schools Sector) visa, a Subclass 576 (AusAID or Defence Sector) visa, a Subclass 771 (Transit) visa or a Special Purpose Visa. If applicants do not hold a substantive visa, new clause 442.211 requires that the last substantive visa the applicant held was not any of the visas listed immediately above, and that the applicant satisfies additional criteria for grant 3003, 3004 and 3005.

 

This amendment preserves the previous ineligibility for a Subclass 442 visa for holders of the visas listed immediately above as these visas are generally granted for restricted purposes and it is not appropriate to allow holders of these visas to transfer to other visas onshore.

New clause 442.211 allows holders or previous holders of all substantive visas other than those specifically excluded to be eligible for the grant of a Subclass 442 (Occupational Trainee) visa while onshore, rather than travelling offshore in order to apply for a Subclass 442 visa or applying onshore for one of the qualifying visas previously listed in clause 442.211 of the Principal Regulations.

The effect of new clause 442.211 is also to require all eligible applicants who no longer hold a substantive visa at time of application to meet the same Schedule 3 criteria. Previously, applicants who last held certain qualifying visas had to satisfy Schedule 3 criterion 3002 by making a valid application for a Subclass 442 visa within 12 months since last holding the qualifying visa, whereas applicants who last held other qualifying visas had no Schedule 3 time limit imposed upon them.

Item [3] – Schedule 2, clause 442.229

This item substitutes clause 442.229 in Schedule 2 of the Principal Regulations with new clause 442.229.

The purpose of new clause 442.229 is to list some of the qualifying visas previously listed in clause 442.211 of the Principal Regulations. The effect of new clause 442.229 is to continue to ensure that holders or previous holders of Subclasses 570, 572, 573, 574 and 575 visas are only eligible for the grant of a Subclass 442 visa if they have completed at least a diploma in Australia and wish to undertake an occupational training programme closely related to their field of study.

 

The effect of new clause 442.229 is also to continue to ensure that holders or previous holders of Subclasses 570, 572, 573, 574 and 575 visas are only eligible for the grant of a Subclass 442 visa if they require a fixed period of supervised work experience in order to meet the mandatory registration requirements for their profession, and provided they are suitably qualified and have completed their primary course of study.

 

Schedule 4 – Amendments relating to overseas forces

 

Item [1] - Regulation 1.03, definition of SOFA forces civilian component member, paragraph (a)

This item amends paragraph (a) of the regulation 1.03 definition of “SOFA forces civilian component member” of Division 1.2 of Part 1 of the Principal Regulations by inserting a reference to “the Republic of the Philippines” after the reference to “Papua New Guinea”.

The effect of this amendment is to include the Republic of the Philippines in the list of countries with a Status of Forces Agreement (SOFA) with Australia in the definition of "SOFA forces civilian component member" so that such persons and their dependants will be included as persons who have a prescribed status and are taken to hold a Special Purpose Visa for the purposes of travel to, entry and stay in Australia.

This amendment is the result of the Department of Defence negotiations with the Republic of the Philippines in relation to a SOFA. This amendment will have no effect until the Australian Parliament has approved the Agreement and the two countries have exchanged diplomatic notes confirming a date of effect for it.

 

Item [2] - Regulation 1.03, definition of SOFA forces member, paragraph (a)

This item amends paragraph (a) of the regulation 1.03 definition of “SOFA forces member” of Division 1.2 of Part 1 of the Principal Regulations by inserting a reference to “the Republic of the Philippines” after the reference to “Papua New Guinea”.

The effect of this amendment is to include the Republic of the Philippines in the list of countries with a Status of Forces Agreement with Australia in the definition of "SOFA forces member" so that such persons and their dependants will be included as persons who have a prescribed status and are taken to hold a Special Purpose Visa for the purposes of travel to, entry and stay in Australia.

Item [3] – Schedule 2, clause 820.111, note

This item amends the note following clause 820.211 of Schedule 2 to the Principal Regulations by inserting a reference to the definitions of “SOFA forces member” and “SOFA forces civilian component member”.

The effect of this amendment is to include the definitions of “SOFA forces member” and “SOFA forces civilian component member” in the general note about regulation 1.03 definitions for Subclass 820, rather than to refer to them in separate notes under specific subclauses.

Item [4] – Schedule 2, subclause 820.211(2A), note

This item omits the note following subclause 820.211(2A) of Schedule 2 to the Principal Regulations.

This amendment is consequential upon the amendment made at item [3] above. The purpose of the amendment at item [4] is to relocate the note to the appropriate place in the regulations and to make Subclass 820 consistent with Subclass 826 (Interdependency) visa.

Item [5] – Schedule 2, Subdivision 826.1, including the note

This item substitutes Subdivision 826.1 Interpretation of Division 1.2 of Part 1 of the Principal Regulations with new Subdivision 826.1.

New Subdivision 826.1 inserts a reference to the definitions of “SOFA forces member” and “SOFA forces civilian component member” into the “Interpretation” clause for Subclass 826. Previously, these definitions were not referred to in Part 826 of the Principal Regulations despite the occurrence of the defined phrases within the Part. The amendment makes Subclass 826 consistent with Subclass 820 as amended in item [4] above.

 

 

 

Schedule 5 – Amendment relating to relevant assessing authorities (commencing 1 July 2007)

 

Item [1] – Subregulation 2.26B(1)

 

This item substitutes subregulation 2.26B(1) of Division 2.6 in Part 2 of the Principal Regulations, with new subregulations 2.26B(1) and 2.26B(1A).

New subregulation 2.26B(1) provides that the Minister may specify a person or body as a relevant assessing authority for a skilled occupation, and may also specify that person or body as a relevant assessing authority for one or more countries, for the purposes of an application for a skills assessment made by a resident of one of those countries.

The effect of new subregulation 2.26B(1) is that a specified person or body will be limited to making skills assessments for the specified occupation for residents in the country (or countries) specified. Potential visa applicants requesting a skills assessment for a specified occupation who are residents of a specified country must have their skills assessed by a person or body that is a relevant assessing authority for that occupation in that country. The Minister’s power under new subregulation 2.26B(1) is subject to new subregulation 2.26B(1A), on which there are further details below.

New subregulation 2.26B(1A) provides that the Minister must not specify a person or body as a relevant assessing authority for a skilled occupation without either the Minister for Education, Science and Training or the Minister for Employment and Workplace Relations having approved the person or body as the relevant assessing authority for the occupation.

The purpose of this amendment is to implement recommendations by the Council of Australian Governments to streamline the offshore skills assessment process, by having certain skills assessments handled by assessing authorities responsible for assessments according to the country of residence of the applicant rather than by one centralised assessing authority. Prior to this amendment, regulation 2.26B allowed relevant assessing authorities to be specified only in respect of particular occupations and not in relation to residents in particular countries.

The amendment provides for the Minister to act on the approval of the Minister for Employment and Workplace Relations as an alternative to that of the Minister for Education, Science and Training. This is because the Minister for Employment and Workplace Relations will select through a tender process the persons or bodies who will conduct skills assessments for specified occupations in respect of applicants residing in specified countries. The commencement date of 1 July 2007 will facilitate the tender process by having the actual regulations in place under which the appointments will be made.

To give effect to this tender process the Minister for Immigration and Citizenship will act on the approval of the Minister for Employment and Workplace Relations when specifying relevant assessing authorities for specified occupations in respect of applicants residing in specified countries. The Minister for Education Science and Training will continue to be able to approve persons or bodies to be specified as relevant assessing authorities.