This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 5).

Regulation 2 – Commencement

This regulation provides that the Regulations commence on 1 July 2007.

Regulation 3 – Amendment of Migration Regulations 1994

Subregulation 3(1) provides that Schedule 1 amends Migration Regulations 1994 (the Principal Regulations).

Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to an application for a visa:

·        made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (the Act)), before 1 July 2007; or

·        made on or after 1 July 2007.

Regulation 4 – Amendment of Migration Regulations 1994

Subregulation 4(1) provides that Schedule 2 amends the Principal Regulations.

Subregulation 4(2) provides that the amendments made by items [1], [4], [5], [6], [7], [8], [9] and [10] of Schedule 2 apply in relation to an application for a Special Category (Temporary) (Class TY) visa made on or after 1 July 2007.

Subregulation 4(3) provides that the amendments made by items [2], [3] and [11] of Schedule 2 apply in relation to a person arriving in Australia on or after 1 July 2007.

Regulation 5 – Amendment of Migration Regulations 1994

Subregulation 5(1) provides that Schedule 3 amends the Principal Regulations.

Subregulation 5(2) provides that the amendment made by Schedule 3 applies in relation to an application for a visa:

·        made, but not finally determined (within the meaning of subsection 5 (9) of the Act), before 1 July 2007; or

·        made on or after 1 July 2007.

Subregulation 5(3) provides that the amendment made by Schedule 3 also applies in relation to a visa granted before 1 July 2007, but only in relation to a breach of a visa condition that occurred on or after 1 July 2007.

Regulation 6 – Amendment of Migration Regulations 1994

Subregulation 6(1) provides that Schedule 4 amends the Principal Regulations.

Subregulation 6(2) provides that the amendments made by Schedule 4 apply in relation to an application for a visa:

·        made, but not finally determined (within the meaning of subsection 5 (9) of the Act), before 1 July 2007; or

·        made on or after 1 July 2007.

Subregulation 6(3) provides that if a visa to which condition 8206 applied was granted before 1 July 2007, condition 8206 is taken not to apply in relation to that visa on and after 1 July 2007.

Condition 8206 generally precluded certain Student (Temporary) (Class TU) visa holders from changing from a course offered by an education provider to course offered by another education provider within the first 12 months of that course or during the entire course if he course is for less than 12 months.

Regulation 7 – Amendment of Migration Regulations 1994

Subregulation 7(1) provides that Schedule 5 amends the Principal Regulations.

Subregulation 7(2) provides that the amendments made by Schedule 5 apply in relation to an application for a visa made on or after 1 July 2007.

Subregulation 7(3) provides that despite the amendment of a provision of the Principal Regulations mentioned in item [11] of Schedule 5, a Gazette Notice that was:

·        made for that provision; and

·        in effect immediately before 1 July 2007;

is taken to continue in effect, on and after 1 July 2007, as if it were an instrument made for the provision as amended by item [11].

Regulation 8 – Amendment of Migration Regulations 1994

Subregulation 8(1) provides that Schedule 6 amends the Principal Regulations.

Subregulation 8(2) provides that the amendments made by Part 1 of Schedule 6 apply in relation to an application for a visa made on or after 1 July 2007.

Subregulation 8(3) provides that the amendments made by Part 2 of Schedule 6 apply in relation to:

·        an application for approval as a standard business sponsor:

-        made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2007; or

-        made on or after 1 July 2007; and

·        a nomination of a business activity:

-        made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2007; or

-        made on or after 1 July 2007; and

·        an application for a visa:

-        made, but not finally determined (within the meaning of subsection 5(9) of the Act), before 1 July 2007; or

-        made on or after 1 July 2007.

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Schedule 1 – Amendments relating to bridging visas

Item [1] – Schedule 2, after subclause 010.611(3A)

This item inserts new subclause 010.611(3B) in Part 010 of Schedule 2 to the Principal Regulations. Part 010 provides the criteria which must be satisfied for a Subclass 010 (Bridging A) visa to be granted. The new subclause provides that in the case of a Bridging A visa granted to a non-citizen who meets the requirements of subclause 010.211(2) or (3) on the basis of a valid application for a Skilled – Independent Overseas Student (Class DD) visa, or a Skilled – Australian-sponsored Overseas Student (Class DE) visa, there are nil conditions.

This amendment clarifies the policy intention behind the amendments made on 1 October 2006 by the Migrations Amendment Regulations 2006 (No 6) that removed condition 8501 (the requirement to maintain health insurance) from the bridging visa associated with certain permanent skilled visas. Those amendments were intended to provide that by removing the 8501 condition requirement, the Bridging A visa would be granted with nil conditions. By oversight, however, the effect was that the relevant visas then came under subclause 010.611(4) which provides for certain conditions being attached to the bridging visa. This was not the intention.

Item [2] – Schedule 2, subclauses 020.611(3) and (3A)

This item omits subclauses 020.611(3) and (3A) of Part 020 of Schedule 2 to the Principal Regulations, and inserts new subclauses 020.611(3), (4) and (5). Part 020 provides the criteria which must be satisfied for a Subclass 020 (Bridging B) visa to be granted.

The effect of this amendment is to renumber omitted subclauses 020.611(3) and (3A) as new subclauses 020.611(5) and (3), respectively, without any change except as to the ordering of the subclauses for the purpose of clarifying the structure of clause 020.611.

The amendment also inserts a new subclause 020.611(4) which provides that there are nil conditions to be imposed in the case of a Bridging B visa granted to a non-citizen who meets the requirements of subclause 020.212(2) or (3) on the basis of a valid application for a Skilled – Independent Overseas Student (Class DD) visa, or a Skilled – Australian-sponsored Overseas Student (Class DE) visa.

This amendment clarifies the policy intention behind the amendments made on 1 October 2006 by the Migrations Amendment Regulations 2006 (No 6) that removed condition 8501 (the requirement to maintain health insurance) from the bridging visa associated with certain permanent skilled visas. Those amendments were intended to provide that by removing the 8501 condition requirement, the Bridging B visa would be granted with nil conditions. By oversight, however, the effect was that the relevant visas then came under the old subclause 020.611(3) which provides for certain conditions being attached to the bridging visa. This was not the intention.

Schedule 2 – Amendments relating to border processing

Item [1] – After paragraph 2.16(2)(a)

This item inserts new paragraph 2.16(2)(aa) after paragraph 2.16(2)(a) in Division 2.3 of Part 3 of the Principal Regulations.

New paragraph 2.16(2)(aa) provides that the grant of a special category visa using an authorised system must be notified by a general notice in immigration clearance.

The general methods for notifying applicants of visa grants are set out in paragraph 2.16(2)(b) of the Principal Regulations. Previously, the only specific methods for notifying the grant of particular visas (limited to bridging visas) were set out in paragraph 2.16(2)(a) of the Principal Regulations.

The effect of new paragraph 2.16(2)(aa) is to create a new method for notifying New Zealand citizens in immigration clearance of the grant of a special category visa where the grant has been made using an authorised system as arranged under subsection 495A(1) of the Act.

Subsection 495A(1) of the Act provides that the Minister for Immigration and Citizenship (the Minister) may arrange for the use of computer programs, under the Minister’s control, for any purposes for which the Minister may make a decision. Under subsection 495A(2), when a computer makes a decision under a subsection 495A(1) arrangement, the decision is taken to have been made by the Minister. The authorised system which is used to immigration clear arriving persons and process special category visa applications will operate under a subsection 495A(1) arrangement. The instrument in writing providing for the arrangement commences on 1 July 2007.

When using an authorised system, the process of applying for and being granted a visa does not involve any interaction with a clearance officer. The authorised system is not able to provide notification of grant of the visa by any of the methods in paragraph 2.16(2)(b). Therefore, new paragraph 2.16(2)(aa) allows for notification when a New Zealand citizen has applied for and been granted a visa using an authorised system.

It is intended that the general notice provided for in new paragraph 2.16(2)(aa) will be a written sign addressed to New Zealand citizens, permanently displayed at the completion of the automated border processing system. The sign will be visible only to people passing through the authorised system after being successfully processed. The sign will not be able to be seen by people who have been referred to a clearance officer by the authorised system, as they will be processed in a different area in immigration clearance.

Item [2] – Subregulations 3.03(2), (3) and (4)

This item amends subregulations 3.03(2), (3) and (4) of Division 3.1 of Part 3 of the Principal Regulations to reflect the amendments to section 166 of the Act made by the Migration Amendment (Border Integrity) Act 2007 (the Border Integrity Act).

Prior to this amendment, subregulations 3.03(2), (3) and (4) prescribed how a person was to comply with paragraphs 166(1)(a) and (b) of the Act. Paragraphs 166(1)(a) and (b) of the Act set out the information that needs to be given or shown to a clearance officer when a citizen or non-citizen enters Australia.

The Border Integrity Act amends section 166 of the Act to allow Australians and selected non-citizens entering Australia to be immigration cleared by an authorised system. As part of this amendment, the Border Integrity Act inserts the term “clearance authority” into the Act. Clearance authority is defined as a clearance officer or an authorised system. The Border Integrity Act also amends section 166 of the Act by replacing the terms “show” and “give” with the terms “present” and “provide” to reflect automated immigration clearance processes more accurately.

The purpose of the amendments to subregulations 3.03(2), (3) and (4) is to reflect these changes to the Act made by the Border Integrity Act, and to reflect automated immigration clearance processes more accurately.

Previously, subregulation 3.03(2) provided that an Australian citizen who must comply with section 166 of the Act must give a completed passenger card to a clearance officer. Subregulation 3.03(2) is amended to provide that a completed passenger card must be provided, rather than given, to a clearance officer.

Previously, subparagraphs 3.03(3)(a)(i), (b)(ii), (d)(ii), (e)(ii) and (f)(ii) provided that certain non-citizens are required to give a completed passenger card to a clearance officer. These subparagraphs are amended to provide that the non-citizens must provide, rather than give, the completed passenger card to a clearance officer.

Previously, subparagraphs 3.03(3)(a)(ii), (b)(i), (d)(i), (e)(i) and (f)(i) provided that certain non-citizens are required to show certain information to a clearance officer. These subparagraphs are amended to provide that non-citizens must present the required information to a clearance authority (rather than show the required information to a clearance officer).

While it is intended that passenger cards must still be given to clearance officers, evidence of identity and a visa that is in effect can be provided to a clearance officer or, if the person is eligible to use the authorised system, to the authorised system. Passenger cards can only be provided to a clearance officer and not to a clearance authority (which includes authorised systems) because an authorised system is not able to collect passenger cards.

Previously, paragraph 3.03(3)(c) provided that a non-citizen who has a right of permanent residence on Norfolk Island must show a clearance officer a passport that is in force and endorsed with an authority to reside indefinitely on Norfolk Island, and give a clearance officer a completed passenger card. Paragraph 3.03(3)(c) is amended so that the passport that is in force and endorsed with an authority to reside indefinitely on Norfolk Island must be presented, rather than shown, to a clearance officer, and a completed passenger card provided, rather than given, to a clearance officer.

Paragraph 3.03(3)(c) is not amended to allow the passport that is in force and endorsed with an authority to reside indefinitely on Norfolk Island to be presented to a clearance authority (as distinct from a clearance officer) because an authorised system is not able to view the endorsement in the passport providing authority to reside indefinitely on Norfolk Island.

Paragraph 3.03(3)(g) is omitted. Paragraph 3.03(3)(g) applies if subregulations 3.03(6) or (7) apply to the non-citizen. Subregulations 3.03(6) and (7) were omitted from the Regulations on 1 July 2005. Therefore, paragraph 3.03(3)(g) has no effect, and is omitted.

Subregulation 3.03(4) applies to non-citizens not covered by subregulation 3.03(3). It previously provided that the non-citizen must show a clearance officer the person’s passport, and if the person’s visa was evidenced by a label, must show the visa label to a clearance officer who asked to see it. The non-citizen was also required to give the clearance officer a completed passenger card. Subregulation 3.03(4) is amended so that non-citizens’ passports must be presented to a clearance authority rather than shown to a clearance officer. It is also amended so that if the person’s visa is evidenced by a label, and a clearance officer asks to see it, the visa label must be presented, rather than shown, to a clearance officer. It is also amended so that a completed passenger card must be provided, rather than given, to a clearance officer.

Subregulations 3.03(2), (3) and (4) are made under subsection 166(2) of the Act. The Border Integrity Act renumbers subsection 166(2) of the Act to subsection 166(3). The Border Integrity Act provides that regulations made for the purposes of old subsection 166(2) are taken to be made for the purposes of new subsection 166(3). While this means that subregulations 3.03(2), (3) and (4) do not need to be remade, for the purposes of clarity, the references to “subsection 166(2)” in subregulations 3.03(2), (3) and (4) are replaced with “subsection 166(3)”.

Item [3] – Regulation 3.03A, note

This item amends the note following regulation 3.03A of Division 3.1 of Part 3 of the Principal Regulations to reflect the amendment to paragraph 166(1)(aa) of the Act made by the Border Integrity Act.

Regulation 3.03A was made under subsection 166(1AA) of the Act. Regulation 3.03A prescribes certain types of personal identifiers that a clearance officer may require a non-citizen to provide. Prior to this amendment, the note following 3.03A advised what was provided by paragraph 166(1)(aa) and that personal identifiers are mentioned in subsection 166(1AA) of the Act.

Prior to the Border Integrity Act, paragraph 166(1)(aa) of the Act provided that, where prescribed circumstances exist, a non-citizen entering Australia must comply with any requirement of a clearance officer to provide personal identifiers. The Border Integrity Act renumbers paragraph 166(1)(aa) of the Act to paragraph 166(1)(c). New paragraph 166(1)(c) inserts a similar requirement, but allows a clearance authority (which is defined to include a clearance officer or an authorised system) to require non-citizens to provide personal identifiers to a clearance officer (not to an authorised system) in prescribed circumstances and before the non-citizens are immigration cleared under section 172. The note following regulation 3.03A is amended to reflect this change.

The Border Integrity Act renumbers paragraph 166(1)(aa) of the Act to paragraph 166(1)(c) and subsection 166(1AA) of the Act to subsection 166(5). The Border Integrity Act provides that regulations made for the purposes of subsection 166(1AA) are taken to be made for the purposes of new section 166(5). While this means that regulation 3.03A does not need to be remade, for the purposes of clarity, item [11] of these regulations replaces the reference to “paragraph 166(1AA)(d)” in regulation 3.03A with “paragraph 166(5)(d)”. For consistency with item [11] and for the purposes of clarity, the reference to “paragraph 166(1AA)” in the note following regulation 3.03A is also replaced with “subsection 166(5)” and the reference to “paragraph 166(1)(aa)” is substituted with “paragraph 166(1)(c)”.

Item [4] – Paragraph 5.15A(a)

This item omits the word “shown” from paragraph 5.15A(a) of Division 5.6 of Part 5 of the Principal Regulations and inserts the word “presented”.

Prior to this amendment, paragraph 5.15A(a) provided that a New Zealand citizen who, among other requirements, held a New Zealand passport that was in force and had shown that passport to an officer, was in a class of persons for the purposes of paragraph 32(2)(c) of the Act. Paragraph 5.15A(a) is amended so that the New Zealand passport must be presented, rather than shown, to an officer.

The purpose of the amendment to paragraph 5.15A(a) is to provide consistency of expression with the Act. The Border Integrity Act amends section 166 of the Act to allow Australians and selected non-citizens entering Australia to be immigration cleared by an authorised system. The Border Integrity Act replaces the term ‘show’ with ‘present’ in section 166 of the Act to reflect automated immigration clearance processes more accurately.

Item [5] – Schedule 1, subitem 1219(1)

This item amends subitem 1219(1) of Schedule 1 to the Principal Regulations, by excluding applicants for a Special Category (Temporary) (Class TY) visa using an authorised system from having to use form 15 to make a valid application for the visa.

An authorised system cannot collect a paper form and cannot provide to a non-citizen an authorised form as defined by regulation 1.18 of the Principal Regulations. Under regulation 1.18, an authorised form in an interactive computer program must be made available on the internet. An authorised system is not connected to the internet and therefore cannot provide an authorised form for the purposes of making a valid application for a visa. Therefore the purpose of this amendment is to allow eligible New Zealand citizens to make a valid application for a special category visa via an authorised system without having to use an approved form.

Item [6] – Schedule 1, paragraph 1219(3)(b)

This item amends paragraph 1219(3)(b) of Schedule 1 to the Principal Regulations, to reflect the expressions used in the amendments to section 166 of the Act made by the Border Integrity Act.

The Border Integrity Act amends section 166 of the Act to allow Australians and selected non-citizens entering Australia to be immigration cleared by an authorised system. As part of this amendment, the Border Integrity Act inserts the term “clearance authority” into the Act. Clearance authority is defined as a clearance officer or an authorised system. The Border Integrity Act also replaces the term “show” with “present” in section 166 of the Act to reflect automated immigration clearance processes more accurately.

Prior to this amendment, paragraph 1219(3)(b) provided that applicants must give an officer or a clearance officer a New Zealand passport that is in force as part of making a valid application for a special category visa. Paragraph 1219(3)(b) is amended to provide that the applicant must present a New Zealand passport to an officer or a clearance authority (which is defined to include a clearance officer and an authorised system), rather than give the New Zealand passport to an officer or clearance officer.

The purpose of the amendment to paragraph 1219(3)(b) is to provide consistency of expression with the Act.

Item [7] – Schedule 1, item 1219, after paragraph 1219(3)(c)

This item inserts new paragraph 1219(3)(d) after paragraph 1219(3)(c) in Schedule 1 to the Principal Regulations.

Subitem 1219(3) provides other requirements for making a valid application for a Special Category (Temporary) (Class TY) visa. New paragraph 1219(3)(d) provides that if the application for the visa is made using an authorised system, the applicant must answer the health and character questions asked by the authorised system.

The purpose of this amendment is to make it mandatory for New Zealand citizens applying for a special category visa using an authorised system to answer health and character questions asked by the authorised system. The health and character questions must be answered so it can be determined whether applicants may be of a health or character concern. If New Zealand citizens are identified by the health and character questions as possibly being of a health or character concern, they will be referred from the authorised system to a clearance officer so that their application for the special category visa can be considered by a clearance officer.

Item [8] – Schedule 2, Division 444.2, note, first paragraph

This item omits the phrase “shown an officer” from the first paragraph of the note in Division 444.2 of Schedule 2 to the Principal Regulations, and inserts the phrase “presented to an officer or an authorised system”.

The first paragraph of the note in Division 444.2 provides that the only primary criteria for grant of the visa are those set out in paragraph 32(2)(a) of the Act and regulation 5.15A. Prior to the Border Integrity Act, one of the criteria in paragraph 32(2)(a) was that the applicant has shown an officer a New Zealand passport that is in force. The Border Integrity Act amends paragraph 32(2)(a) of the Act by omitting the phrase “shown an officer” and inserting the phrase “presented to an officer or an authorised system”.

The purpose of this amendment is to reflect the amendment to paragraph 32(2)(a) of the Act made by the Border Integrity Act.

Item [9] – Schedule 2, Division 444.2, note, fourth paragraph

This item omits the phrase ‘shown an officer’ from the fourth paragraph of the note in Division 444.2 of Schedule 2 to the Principal Regulations, and inserts the phrase “presented to an officer”.

The fourth paragraph of the note in Division 444.2 sets out the criteria for grant of a special category visa contained in regulation 5.15A. Prior to the amendment in item [4] above, one of the criteria in regulation 5.15A was that the applicant had shown an officer a New Zealand passport that is in force. Item [4] amends regulation 5.15A so that a passport must be presented, rather than shown, to an officer.

The purpose of this amendment is to reflect the amendment to regulation 5.15A made by item [4] of these regulations.

Item [10] – Schedule 2, Division 444.7

This item amends Division 444.7 of Schedule 2 to the Principal Regulations, so that evidencing the grant of a special category visa is discretionary.

Division 444.7 provides the way that evidence of a special category visa must be given. This amendment substitutes clause 444.711 with new clauses 444.711 and 444.712 to provide that no evidence of grant need be given. New clause 444.712 provides that if evidence is given, the ways of giving evidence are the same as those provided in clause 444.711 (prior to amendment) in the Principal Regulations.

Prior to this amendment, clause 444.711 provided that grant of a special category visa must be evidenced in one of three ways, depending on where the visa was granted.

The purpose of this amendment is so that an authorised system does not have to provide evidence of grant of a visa to a New Zealand citizen who has been granted a special category visa using an authorised system. This is necessary because an authorised system is not able to provide evidence of grant of a visa.

Item [11] – Additional amendments

This item omits certain words or phrases from paragraph 3.01(3)(b), subregulations 3.03(1), 3.03(1A), 3.03(1B) and regulation 3.03A of Division 3.1 of Part 3 of the Principal Regulations, and inserts new words or phrases which reflect the amendments to section 166 of the Act made by the Border Integrity Act.

The Border Integrity Act amends section 166 of the Act to allow Australians and selected non-citizens entering Australia to be immigration cleared by an authorised system. As part of this amendment, the Border Integrity Act inserts the term “clearance authority” into the Act. Clearance authority is defined as a clearance officer or an authorised system. The Border Integrity Act also amends section 166 of the Act by replacing the terms “show” and “give” with the terms “present” and “provide” to reflect automated immigration clearance processes more accurately.

Paragraph 3.01(3)(B), subregulations 3.03(1), 3.03(1A), 3.03(1B) and regulation 3.03A are amended for the purpose of reflecting these changes to the Act made by the Border Integrity Act, and to reflect automated immigration clearance processes more accurately.

Previously, paragraph 3.01(3)(b) provided that a person to whom the regulation applied must give the completed passenger card to an officer. Paragraph 3.01(3)(b) is amended to provide that the completed passenger card must be provided to an officer as opposed to given. Paragraph 3.01(3)(b) is not amended to provide that the passenger card must be provided to a clearance authority, rather than an officer, because an authorised system is not able to collect passenger cards.

Previously, subregulation 3.03(1) provided that for paragraph 166(1)(b) of the Act, the information required to be given to a clearance officer was set out in regulation 3.02. Subregulation 3.03(1) is amended to provide that the information set out in regulation 3.02 must be provided to a clearance authority, rather than given to a clearance officer.

Previously, the note following subregulation 3.03(1) stated that under section 166 of the Act, a person who enters Australia must give evidence of their identity. The note following subregulation 3.03(1) is amended to provide that under section 166 of the Act, evidence of identity must be presented, rather than given.

Subregulation 3.03(1A) is made under paragraph 166(1)(aa) of the Act. The Border Integrity Act renumbers paragraph 166(1)(aa) of the Act to paragraph 166(1)(c). The Border Integrity Act provides that regulations made for the purposes of old paragraph 166(1)(aa) are taken to be made for the purposes of paragraph 166(1)(c). While this means that paragraph 166(1)(aa) does not need to be remade, for the purposes of clarity, the reference to “paragraph 166(1)(aa)” in subregulation 3.03(1A) is omitted and “paragraph 166(1)(c)” is inserted.

Subregulation 3.03(1B) is made under subsection 166(1C) of the Act. The Border Integrity Act renumbers subsection 166(1C) of the Act to subsection 166(8). The Border Integrity Act provides that regulations made for the purposes of old subsection 166(1C) are taken to be made for the purposes of subsection 166(8). While this means that subsection 166(1C) does not need to be remade, for the purposes of clarity, the reference to “subsection 166(1C)” in subregulation 3.03(1B) is omitted and “subsection 166(8)” is inserted.

The amendment that is made to subregulation 3.03(1B) is also made to the note following subregulation 3.03(1B). The note following subregulation 3.03(1B) is also amended by omitting the reference to “subsection 166(1B)” and inserting “subsection 166(7)”. This amendment is made because the Border Integrity Act renumbers subsection 166(1B) of the Act to subsection 166(7).

Regulation 3.03A is made under paragraph 166(1AA)(d) of the Act. The Border Integrity Act renumbers paragraph 166(1AA)(d) of the Act to paragraph 166(5)(d). The Border Integrity Act provides that regulations made for the purposes of old paragraph 166(1AA)(d) are taken to be made for the purposes of paragraph 166(5)(d). While this means that paragraph 166(1AA)(d) does not need to be remade, for the purposes of clarity, the reference to “paragraph 166(1AA)(d)” in regulation 3.03A is omitted and “paragraph 166(5)(d)” is inserted.

Schedule 3 – Amendments relating to condition 8202

Item [1] – Schedule 8, subclause 8202(3)

This item substitutes subclass 8202(3) in Schedule 8 to the Principal Regulations with a new subclause 8202(3). Condition 8202 is a condition which applies to student visas and currently requires students to attend 80% of their course contact hours and to maintain academic progress that is certified as satisfactory by their education provider.

New subclause 8202(3) will provide that the holder meets the requirements of the subclause if the education provider does not certify that the holder has either:

·        not achieved satisfactory course progress in accordance with section 19 of the ESOS Act and Standard 10 of the National Code 2007; or

·        not achieved satisfactory course attendance in accordance with section 19 of the ESOS Act and Standard 11 of the National Code 2007.

This proposed amendment to student visa condition 8202 reflects changes to the Education Services for Overseas Students Act 2000 (the ESOS Act) and the National Code 2007. The changes to the ESOS Act and the National Code 2007 were made after a comprehensive evaluation was undertaken by the Department of Education, Science and Training (DEST) in consultation with the Department of Immigration and Citizenship (the Department) and other industry stakeholders. The evaluation found that the issue of a student’s course progress and attendance is more appropriately handled by DEST and education providers and that the Department’s role should be limited to migration matters.

This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.

If an education provider certifies that a student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.

The effect of the National Code 2007 is that Higher Education providers and Vocational Education and Training education institutions who implement the DEST and DIAC approved course progress policy will no longer be required to monitor attendance.

Schedule 4 – Amendments relating to condition 8206

Items [1] to [3]

These items omit the phrase “the application for which was made on form 157C” in subparagraph 1.42(6)(c)(i), sub-subparagraph 1.42(6)(d)(ii)(A) and subparagraph 1.42(6)(e)(i) of Part 1 of the Principal Regulations. This amendment is consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule and the ceasing of the use of form 157C.

Condition 8206 generally provided that a Student (Temporary) (Class TU) visa holder must not change his or her enrolment in a course offered by an education provider to new course offered by another education provider within the first 12 months or during the entire course if the course is for less than 12 months.

Previously, a student could apply for a further Student visa not subject to condition 8206 of Schedule 8 to the Principal Regulations by using form 157C. Form 157C was a dedicated form on which an application for a student visa with permission to change his or her education provider could be made. The student would have then been required to satisfy the Minister that there were exceptional circumstances justifying the change in enrolment in order to be granted a student visa which was not subject to condition 8206.

Following the repeal of condition 8206 by item [35] of this Schedule, students are no longer required to apply for a new student visa to enrol in a new course offered by another education provider within the first 12 months of their principal course or during the entire course if the course is for less than 12 months. Accordingly, the references to form 157C in these items are no longer required.

Item [4] – Schedule 1, paragraph 1222(1)(c)

This item omits paragraph 1222(1)(c) of Schedule 1 to the Principal Regulations. Subitem 1222(1) of Schedule 1 provides for the approved forms which a person must complete for an application for a Student (Temporary) (Class TU) visa to be valid. Paragraph 1222(1)(c) specified the circumstances when form 157C was to be used.

This amendment is consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule and the ceasing of the use of form 157C.

Item [5] – Schedule 1, subparagraph 1222(2)(a)(iii)

This item omits subparagraph 1222(2)(a)(iii) of Schedule 1 to the Principal Regulations. Subitem 1222(2) provides the visa application charge a person must pay for an application for a Student (Temporary) visa to be valid.

Subparagraph 1222(2)(a)(iii) provides for the visa application charge (if any) which must be paid when a person applies for a further Student (Temporary) visa using form 157C. Following the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule, and the ceasing of the use of form 157C, it is not necessary to retain this visa application charge provision which relates only to an application using form 157C.

Items [6] and [7]

These items omits references to “form 157C” in paragraph 1222(3)(c) and subitem 1301(1) of Schedule 1 to the Principal Regulations.

This amendment is consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule and the ceasing of the use of form 157C.

Items [8] and [9]

These items amend subparagraphs 570.211(5)(a)(i) and (ii) of Part 570 of Schedule 2 to the Principal Regulations to remove references to condition 8206. Part 570 provides the criteria which an applicant must satisfy for the grant of a Subclass 570 (Independent ELICOS Sector) visa. This amendment is consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule.

Item [10] – Schedule 2, paragraph 570.211(5)(b)

This item omits paragraph 570.211(5)(b) of Part 570 of Schedule 2 to the Principal Regulations. Paragraph 570.211(5)(b) made it a requirement that “the application was made on form 157C”.

This amendment is consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule and the ceasing of the use of form 157C.

Items [11] to [34]

These items make various amendments to the following Parts of Schedule 2 to the Principal Regulations which are consequential to the repeal of condition 8206 of Schedule 8 to the Principal Regulations by item [35] of this Schedule:

·        Part 570 – Subclass 570 (Independent ELICOS Sector);

·        Part 571 – Subclass 571 (Schools Sector);

·        Part 572 – Subclass 572 (Vocational Education and Training Sector);

·        Part 573 – Subclass 573 (Higher Education Sector);

·        Part 574 – Subclass 574 (Postgraduate Research Sector);

·        Part 575 – Subclass 575 (Non-Award Sector); and

·        Part 576 – Subclass 576 (AusAID or Defence Sector).

These amendments either remove references to condition 8206 from requirements in these subclasses of visa or omit provisions which are contingent on the application of condition 8206 in circumstances where a Student (Temporary) visa holder seeks to change his or her enrolment in a course offered by an education provider to new course offered by another education provider within the first 12 months or during the entire course if the course is for less than 12 months.

Item [35] – Removal of condition 8206 in Schedule 8

This item omits condition 8206 from Schedule 8 to the Principal Regulations.

Condition 8206 currently attaches to all Subclass 570, 571, 572, 573, 574 and 574 visas initially granted to a person and to further student visas granted in certain circumstances. Condition 8206 limits the ability of a student to change his or her enrolment in a course originally offered by an education provider to a course offered by another education provider. Generally, condition 8206 requires student visa holders not to change their enrolment in a course offered by an education provider to new course offered by another education provider within the first 12 months or during the entire course if the course is for less than 12 months.

The removal of condition 8206 and related provisions from the Principal Regulations reflects changes to the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code 2007).

In developing the National Code 2007, DEST undertook an evaluation of the Education Services for Overseas Students Act 2000 in consultation with the Department and other industry stakeholders. One of the agreed outcomes of the evaluation was that the obligations set out in relation to condition 8206 should be removed from the Principal Regulations to become a standard of the National Code 2007. The rationale for this decision is that the change of education provider is essentially an educational matter and that it is not appropriate for the Department to make what are essentially decisions about consumer choice and industry competition matters.

Schedule 5 – Amendments relating to the Work and Holiday (Temporary) (Class US) visa

Item [1] – Schedule 1, subparagraph 1224A(3)(b)(ii)

This item amends subparagraph 1224A(3)(b)(ii) of Schedule 1 to the Principal Regulations to add Subclass 417 (Working Holiday) visa to the subparagraph. Item 1224A of Schedule 1 provides the requirements a person must meet to make a valid application for a Work and Holiday (Temporary) (Class US) visa.

Previously, if a person did not hold a Subclass 462 (Work and Holiday) visa at time of application, they could not make a valid application for a Work and Holiday (Temporary) visa if they had entered Australia as the holder of a Subclass 462 visa.

The amendment made by new subparagraph 1224A(3)(b)(ii) prevents a person who does not hold a Subclass 462 visa from making a valid application for a Work and Holiday (Temporary) visa if they have previously entered Australia as the holder of a Subclass 462 visa or a Subclass 417 visa.

The purpose of both the Subclass 417 visa and the Subclass 462 visa is to give young people an opportunity to holiday in Australia and supplement their funds through incidental work. Because the purpose of both of these visa subclasses is fundamentally the same, the intention is that applicants should only be able to hold one or more visas of either Subclass 417 or Subclass 462 in their lifetime.

Item [2] – Schedule 1, subparagraph 1224A(3)(b)(iii)

This item substitutes subparagraph 1224A(3)(b)(iii) of Schedule 1 to the Principal Regulations with new subparagraph 1224A(3)(b)(iii).

Subparagraph 1224A(3)(b)(iii) previously required an applicant for a Work and Holiday (Temporary) (Class US) visa to provide evidence that the applicant has the support of the grant of the visa from their government.

New subparagraph 1224A(3)(b)(iii) will provide in effect, that the applicant is not required to provide such evidence if they are a member of a class of persons specified by the Minister, by an instrument in writing.

The effect of this amendment is to allow applicants from particular foreign countries specified in an instrument in writing to make valid applications for Work and Holiday (Temporary) visas without providing a evidence of support for the grant of the visa from their government. The intention is that a foreign country will only be specified in an instrument in writing if this is in accordance with the agreement between Australia and that country.

Item [3] – Schedule 1, subparagraph 1224A(3)(c)(iii)

This item substitutes subparagraph 1224A(3)(c)(iii) of Schedule 1 to the Principal Regulations with new subparagraph 1224A(3)(c)(iii).

Subparagraph 1224A(3)(c)(iii) previously required an applicant for a second or third Work and Holiday (Temporary) (Class US) visa to provide evidence that they have the support for the grant of the visa from their current employer and their government.

New subparagraph 1224A(3)(c)(iii) requires the applicant to be a member of a class of persons specified by the Minister, by an instrument in writing.

The effects of this amendment are threefold.

Firstly, a person can only make a valid application for a second or third Work and Holiday (Temporary) visa if they are from a country specified in the instrument in writing. The intention is that a country will only be specified in the instrument in writing if this is in accordance with the agreement between Australia and that country. This change has been made to allow greater flexibility by reflecting specific countries arrangements in an instrument in writing rather than the Principal Regulations.

Secondly, persons who apply for a second or third Work and Holiday visa are no longer required to provide evidence of support for the grant of the visa from their government. The reason for this change is that applicants have already had to provide this evidence in order to make their first Work and Holiday (Temporary) visa application.

Thirdly, the amendment removes the requirement for a person who applies for a second or third Work and Holiday (Temporary) visa to have a letter of support from their employer. This is to give effect to the intention that any work should be incidental to holidaying in Australia and should not be the primary purpose an applicant applies for the visa.

Item [4] – Schedule 2, clause 462.211, clause 462.211A and clause 462.212

This item substitutes clause 462.211 of Part 462 of Schedule 2 to the Principal Regulations with new clause 462.211, and inserts new clauses 462.411A and 462.212. Part 462 provides the criteria which an applicant must satisfy to be granted a Subclass 462 (Work and Holiday) visa.

Clause 462.211 previously required the applicant to be at least 18 but not yet 31. This requirement will be renumbered as new clause 462.212.

New clauses 462.211 and 462.211A set out the criteria particular applicants are required to satisfy to be granted a Subclass 462 visa.

New clause 462.211 states that if an applicant does not hold a Subclass 462 visa and is not a member of a class of persons specified by the Minister, by an instrument in writing, for subparagraph 1224A(3)(b)(iii) of Schedule 1 they must to satisfy the criteria specified in clauses 462.212, 462.213, 462.215, 462.216 and 462.217.

New clause 462.211A states that if an applicant either:

·        holds a Subclass 462 visa; or

·        does not hold a Subclass 462 visa and is a member of a class of persons specified by the Minister, by an instrument in writing, for subparagraph 1224A(3)(b)(iii).

they must satisfy the criteria in clauses 462.212, 462.214, 462.215, 462.216 and 462.217.

This amendment specifies the criteria that persons from different countries have to satisfy depending on the agreement made with Australia and the foreign country.

Item [5] – Schedule 2, after clause 462.213

This item inserts new clause 462.214 after 462.213 in Part 462 of Schedule 2 to the Principal Regulations. New clause 462.214 provides that an applicant must hold a valid passport issued by a foreign country specified in an instrument in writing made under paragraph 1224A(3)(a) of Schedule 1. Only an applicant who comes within clause 462.211A is required to meet new clause 462.214.

Item [6] – Schedule 2, clause 462.216

These items make technical amendments to change the reference from “Gazette Notice” to “instrument in writing” in paragraphs 1224A(3)(a) and 1224A(3)(aa) of Schedule 1 to the Principal Regulations, and clause 462.216 and paragraph 462.221(c) of Schedule 2 to the Principal Regulations.

These changes have been made in accordance with the Legislative Instruments Act 2003 (the LI Act). Under the provisions of the LI Act, all legislative instruments are required to be registered on the Federal Register of Legislative Instruments (the FRLI). The LI Act also provides that Gazette Notices made under regulations that were in force before 1 January 2005 and not amended since then are only required to be registered on the FRLI and that additional publication in the Gazette is not required. As it is no longer necessary to publish these instruments in the Gazette and therefore it is no longer appropriate to refer to them as “Gazette Notices”. The instruments are readily available and accessible on the FRLI.

Item [7] – Schedule 2, paragraph 462.217(b)

This items amends paragraph 462.217(b) of Part 462 of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the requirement that an applicant for a Subclass 462 (Work and Holiday) visa must have a reasonable prospect of obtaining employment in Australia.

This change is to give effect to the intention that any work undertaken by the holder of a Subclass 462 visa should be incidental to holidaying in Australia and not be the applicant’s primary purpose for applying for the visa.

Item [8] – Schedule 2, paragraph 462.217(c)

This item omits paragraph 462.217(c) of Part 462 of Schedule 2 to the Principal Regulations.

The effect of this amendment is to remove the requirement that an applicant for a Subclass 462 (Work and Holiday) visa must have a reasonable prospect of obtaining employment in Australia.

This change is to give effect to the intention that any work undertaken by the holder of a Subclass 462 visa should be incidental to holidaying in Australia and not be the applicant’s primary purpose for applying for the visa.

Item [9] – Schedule 2, clause 462.613

This item amends clause 462.613 of Part 462 of Schedule 2 to the Principal Regulations to insert after the words “condition 8540” the words “may be imposed”. The effect of new clause 462.213 is to make condition 8540 a discretionary condition for a person’s first or second Subclass 462 (Work and Holiday) visa. Condition 8540 was previously a mandatory condition in these circumstances.

The effect of subsection 46(1A) of the Act is that a person who has held a visa subject to condition 8540 since last entering Australia is prevented from making a valid application for a substantive visa, other than a protection visa or a Subclass 462 visa, while the holder remains in Australia, unless the Minister waives the condition under subsection 41(2A) of the Act.

The intention is that an applicant’s first or second Subclass 462 visa will not be made subject to Condition 8540, if the arrangement between Australia and the government of their country allows a person to make an application for any substantive visa while they remain in Australia.

Item [10] – Schedule 2, clause 462.614

This item amends clause 462.614 of Part 462 of Schedule 2 to the Principal Regulations to insert the words “may be imposed” after the words “condition 8503”. The effect of new clause 462.614 is to allow a discretion so that a person’s third Subclass 462 (Work and Holiday) visa “may” be subject to condition 8503. Condition 8503 was previously a mandatory condition in these circumstances.

The effect of subsection 46(1A) of the Act is that a person who has held a visa subject to condition 8503 since last entering Australia, is prevented from making a valid application for a substantive visa, other than a protection visa or a Subclass 462 visa, while the holder remains in Australia, unless the Minister waives the condition under subsection 41(2A) of the Act.

The intention is that an applicant’s third Subclass 462 visa will not be made subject to Condition 8503, if the arrangement between Australia and their country allows the person to make an application for any substantive visa while they remain in Australia.

Item [11] – Additional amendments

This item make technical amendments to change the reference from “Gazette Notice” to “instrument in writing” in paragraphs 1224A(3)(a) and 1224A(3)(aa) of Schedule 1 to the Principal Regulations; and paragraph 462.221(c) of Schedule 2 to the Principal Regulations.

For further details see the notes to item [6] of this Schedule.

Schedule 6 – Amendments relating to Subclass 457 (Business (Long Stay))

Part 1 – Criteria relating to English language proficiency for Subclass 457 visas

Item [1] – Schedule 2, after paragraph 457.223(4)(e)

This item inserts new paragraphs 457.223(4)(ea), (eb) and (ec) in subclause 457.223(4) of Part 457 of Schedule 2 to the Principal Regulations. Part 457 provides the criteria which an applicant must satisfy to be granted a Subclass 457 (Business (Long Stay)) visa. New paragraphs 457.223(4)(ea), (eb) and (ec) prescribe additional primary criteria to be satisfied at the time of decision by an applicant for a Subclass 457 visa on the basis of sponsorship for employment in Australia by a standard (Australian business) business sponsor.

New paragraph 457.223(4)(ea) requires that if the applicant would be required to hold a licence, registration or membership that is mandatory for the proposed employment in Australia, and in order to obtain the relevant qualification the applicant needs to demonstrate a level of English language proficiency equivalent to the level of English language proficiency that is required to achieve an IELTS test average band score of more than 4.5 (i.e. 4.6 and higher), to satisfy the criterion the applicant must have proficiency in English of at least the standard required to obtain the licence, registration or membership.

“IELTS test” is defined in regulation 1.03 of Part 1 of the Principal Regulations to mean the International English Language Testing System test.

The effect of this amendment is that if the applicant is required to hold a licence, registration or membership to be employed in the nominated activity in Australia, and to obtain that qualification requires English equivalent to an IELTS test average band score of more than 4.5, then the applicant must have at least the level of English language proficiency required to obtain the qualification. For example, if the applicant would be required to hold a licence that required a level of English language proficiency of IELTS test average band score of 7, the applicant would need to have that level of English to satisfy this criterion. However, if obtaining the licence required only an IETLS test average band score of 4.5 or less, new paragraph 457.223(4)(ea) would not apply to the applicant, but the criterion in new paragraph 457.223(4)(eb) might apply in respect of the applicant.

New paragraph 457.223(4)(eb) provides that if the applicant is not an exempt applicant (see new subclause 457.223(11), inserted by item [4] of Part 1 of this Schedule) and new subclause 457.223(6) (inserted by item [3] of Part 1 of this Schedule) and paragraph 457.223(4)(ea) do not apply to the applicant, the level of English language proficiency required by the applicant to be granted a visa is equivalent to at least the level of English language proficiency that is required to achieve an IELTS test average band score of 4.5.

The effect of this amendment is that if the applicant is an exempt applicant under new subclause 457.223(11), the applicant does not need to satisfy any requirements in respect of English language proficiency. The applicant will also not be required to satisfy any requirements relating to English language proficiency if new subclause 457.223(6) applies in relation to the applicant (see further details on new subclause 457.223(6), below). In any other case, an applicant to whom new paragraph 457.223(4)(eb) applies must have a level of English at least equivalent to an average band score of 4.5 in an IELTS to satisfy the criteria.

New paragraph 457.223(4)(ec) inserts an additional criterion that an applicant must demonstrate his or her English language proficiency if so required by the Minister. The effect of this criterion is that the Minister may require applicants to demonstrate the level of their English language proficiency by, for example, producing an IELTS test result.

Item [2] - Schedule 2, after paragraph 457.223(5)(f)

This item inserts new paragraphs 457.223(5)(fa), (fb) and (fc) in subclause 457.223(5) of Part 457 of Schedule 2 to the Principal Regulations. New paragraphs 457.223(5)(fa), (fb) and (fc) prescribe additional primary criteria to be satisfied at the time of decision by an applicant for a Subclass 457 (Business (Long Stay))visa on the basis of sponsorship for employment in Australia by a standard (overseas business) business sponsor.

New paragraph 457.223(5)(fa) requires that if the applicant would be required to hold a licence, registration or membership that is mandatory for the proposed employment in Australia, and in order to obtain the relevant qualification the applicant needs to demonstrate a level of English language proficiency equivalent to the level of English language proficiency that is required to achieve an IELTS test average band score of more than 4.5 (that is, an average band score of 4.6 and higher), to satisfy the criterion the applicant must have proficiency in English of at least the standard required to obtain the licence, registration or membership.

“IELTS test” is defined in regulation 1.03 of Part 1 of the Principal Regulations to mean the International English Language Testing System test.

The effect of this amendment is that if the applicant is required to hold a licence, registration or membership to be employed in the nominated activity in Australia, and to obtain that qualification requires English equivalent to an IELTS test average band score of more than 4.5, then the applicant must have at least the level of English language proficiency required to obtain the qualification. For example, if the applicant would be required to hold a licence that required a level of English language proficiency of IELTS test average band score of 7, the applicant would need to have that level of English to satisfy this criterion. However, if obtaining the licence required only an IETLS test average band score of 4.5 or less, new paragraph 457.223(5)(fa) would not apply to the applicant, but the criterion in new paragraph 457.223(5)(fb) might apply in respect of the applicant.

New paragraph 457.223(5)(fb) provides that if the applicant is not an exempt applicant (see new subclause 457.223(11), inserted by item [4] of Part 1 of this Schedule) and new subclause 457.223(6) (inserted by item [3] of Part 1 of this Schedule) and paragraph 457.223(5)(fa) do not apply to the applicant, the level of English language proficiency required by the applicant to be granted a visa is equivalent to at least the level of English language proficiency that is required to achieve an IELTS test average band score of 4.5.

The effect of this amendment is that if the applicant is an exempt applicant under new subclause 457.223(11), the applicant does not need to satisfy any requirements in respect of English language proficiency. The applicant will also not be required to satisfy any requirements relating to English language proficiency if new subclause 457.223(6) applies in relation to the applicant (see further details on new subclause 457.223(6), below). In any other case, an applicant to whom new paragraph 457.223(5)(fb) applies must have a level of English at least equivalent to an average band score of 4.5 in an IELTS to satisfy the criteria.

New paragraph 457.223(5)(fc) inserts an additional criterion that an applicant must demonstrate his or her English language proficiency if so required by the Minister. The effect of this criterion is that the Minister may require applicants to demonstrate the level of their English language proficiency by, for example, producing an IELTS test result.

Item [3] – Schedule 2, after subclause 457.223(5)

This item inserts new subclause 457.223(6) in Part 457 of Schedule 2 to the Principal Regulations.

New subclause 457.223(6) provides that this subclause applies to an applicant if the applicant is paid (in connection with the nominated activity in relation to the applicant) a level of salary worked out in a way specified by the Minister in an instrument for the purposes of paragraph 457.223(6)(a), and the Minister considers granting a Subclass 457 (Business (Long Stay)) visa to the applicant would be in the interest of Australia.

The circumstances in which it could be considered to be in the interests of Australia to grant the visa could include economic considerations such as the need for skilled workers in Australia in certain occupations.

Item [4] – Schedule 2, after subclause 457.223(10)

This item inserts new subclause 457.223(11) in Part 457 of Schedule 2 to the Principal Regulations. New subclause 457.223(11) provides that in subclauses 457.223(4) and (5), “exempt applicant” means an applicant who is in a class of applicants specified by the Minister, by an instrument in writing, for the purposes of this new subclause.

The instrument may specify classes of applicant for whom an assessment of English language proficiency may not be appropriate or necessary. These classes could include:

·        applicants whose first language was English and who hold a passport of an English-speaking country such as Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America;

·        applicants nominated for higher skilled or professional positions in demand where English is not a requirement for registration or licensing in the relevant occupation; and

·        applicants who have completed at least 5 continuous years of secondary and/or tertiary education at an institution where all instruction was conducted in English.

Part 2 – Amendments relating to approval of sponsors, nominations and approved sponsors for Subclass 457 visas

Item [5] – Subregulation 1.20D(2)

This item omits the words “The Minister” from subregulation 1.20D(2) of Part 1 of the Principal Regulations, and inserts the words “Subject to subregulations (2A) and (2B), the Minister”.

New subregulations 1.20D(2A) and (2B) are inserted in regulation 1.20D by item [7] of this Schedule. The effect of this amendment is to make subregulation 1.20D(2) subject to new subregulations 1.20D(2A) and (2B). Subregulation 1.20D(2) requires the Minister to approve an application for approval as a standard business sponsor if certain criteria are met, but this is now made subject to new subregulations 1.20D(2A) and (2B). For details of the operation of the new subregulations, please see the notes on item [7] of this Schedule.

Item [6] – Paragraph 1.20D(2)(d)

This item omits paragraph 1.20D(2)(d) from Part 1 of the Principal Regulations. The effect of this amendment is to omit a criterion for approval as a business sponsor from subregulation 1.20D(2). The omitted criterion relates to adverse information being known about the applicant for approval as a sponsor (“the sponsorship applicant”) or certain persons connected with the sponsorship applicant.

This amendment is consequential upon the insertion of new subregulation 1.20D(2A) in the Principal Regulations by item [7] of this Schedule. New subregulation 1.20D(2A) repeats the criterion of the omitted paragraph 1.20D(2)(d) in a revised form. This amendment allows the criterion to be waived by the Minister under new subparagraph 1.20D(2B), if the Minister considers it reasonably appropriate to do so. For details of the operation of new subregulations 1.20D(2A) and (2B), please see the notes on item [7] of this Schedule.

Item [7] – After subregulation 1.20D(2)

This item inserts new subregulations 1.20D(2A) and (2B) in Part 1 of the Principal Regulations.

New subregulation 1.20D(2A), to which subregulation 1.20D(2) is made subject by the amendment made by item [5] above, and which is subject to new subregulation 1.20D(2B) below, provides that the Minister must not approve an application for approval as an Australian business standard business sponsor if the Minister is aware that adverse information is known about the business background of the sponsorship applicant or certain persons connected with the sponsorship applicant, or if the Minister is aware that the sponsorship applicant, or certain persons connected with the sponsorship applicant, is under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsorship applicant, or any individual who is a member of a partnership or unincorporated association that is one of the entities that constitute the sponsorship applicant.

New subregulation 1.20D(2B) provides that despite new subregulation 1.20D(2A), the Minister may approve an application if he or she considers it reasonably appropriate to do so. The effect of new subregulation 1.20D(2A) is that the bar placed on approval by new subregulation 1.20D(2A) may be overridden in circumstances where the Minister considers it reasonably appropriate to do so.

Circumstances under which it may be reasonably appropriate for the Minister to approve the application, despite adverse information about the business background of the sponsor or an investigation for breach of an undertaking or non-compliance with Australian law, could include a situation where the relevant adverse information or potential outcome of the investigation would not, in the Minister’s opinion, result in the sponsorship applicant being deemed unfit to sponsor.

Item [8] – Subregulation 1.20D(3)

This item omits the words “In subparagraph (2)(d)(ii)” from subregulation 1.20D(3) of Part 1 of the Principal Regulations, and inserts the words “In subparagraphs (2A)((a)(ii) and (b)(ii)”.

This amendment is consequential upon the omission of paragraph 1.20D(2)(d) by item [6] of this Schedule, above, and the reinsertion of the criterion formerly in paragraph 1.20D(2)(d) in new subregulation 1.20D(2A) by item [7] of this Schedule. The term “officer” is now used in new subparagraphs 1.20D(2A)(a)(ii) and (b)(ii) and continues to mean, for a corporation, an officer of the corporation within the meaning of the Corporations Act 2001.

Item [9] – Subregulation 1.20DA(2)

This item omits the words “The Minister” from subregulation 1.20DA(2) of Part 1 of the Principal Regulations, and inserts the words “Subject to subregulations (2A) and (2B), the Minister”.

New subregulations 1.20DA(2A) and (2B) are inserted in regulation 1.20D by item [11] of this Schedule. The effect of this amendment is to make subregulation 1.20DA(2) subject to new subregulations 1.20DA(2A) and (2B). Subregulation 1.20DA(2) requires the Minister to approve an application for approval as an overseas business standard business sponsor if certain criteria are met, but this is now made subject to new subregulations 1.20DA(2)(2A) and (2B). For details of the operation of the new subregulations, please see the notes on item [11] of this Schedule.

Item [10] – Paragraph 1.20DA(2)(c)

This item omits paragraph 1.20DA(2)(c) from Part 1 of the Principal Regulations. The effect of this amendment is to omit a criterion for approval as an overseas business standard business sponsor from subregulation 1.20DA(2).

The omitted criterion relates to adverse information being known about the applicant for approval as a sponsor (“the sponsorship applicant”) or certain persons connected with the sponsorship applicant. This amendment is consequential upon the insertion of new subregulation 1.20DA(2A) in the Principal Regulations by item [11] of this Schedule. New subregulation 1.20DA(2A) repeats the criterion of the omitted paragraph 1.20DA(2)(c) in a revised form.

This amendment allows the criterion to be waived by the Minister under new subparagraph 1.20DA(2B), if the Minister considers it reasonably appropriate to do so. For details of the operation of new subregulations 1.20DA(2A) and (2B), please see the notes on item [11] of this Schedule.

Item [11] – After subregulation 1.20DA(2)

This item inserts new subregulation 1.20DA(2A) after subregulation 1.20DA(2) in Part 1 of the Principal Regulations.

New subregulation 1.20DA(2A), to which subregulation 1.20DA(2B) is made subject by the amendment made by item [5] of this Schedule, and which is subject to new subregulation 1.20D(2B), provides that the Minister must not approve an application for as an overseas standard business sponsor if the Minister is aware that adverse information is known about the business background of the sponsorship applicant or certain persons connected with the sponsorship applicant, or if the Minister is aware that the sponsorship applicant, or certain persons connected with the sponsorship applicant, is under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsorship applicant, or any individual who is a member of a partnership or an unincorporated association that is one of the entities that constitute the sponsorship applicant.

New subregulation 1.20DA(2B) provides that despite new subregulation 1.20DA(2A), the Minister may approve an application if he or she considers it reasonably appropriate to do so. The effect of new subregulation 1.20D(2A) is that the bar placed on approval by new subregulation 1.20D(2A) may be overridden in circumstances where the Minister considers it reasonably appropriate to do so.

Circumstances under which it may be reasonably appropriate for the Minister to approve the application, despite adverse information about the business background of the sponsor or an investigation for breach of an undertaking or non-compliance with Australian law, could include a situation where the relevant adverse information or potential outcome of the investigation would not, in the Minister’s opinion, result in the sponsorship applicant being deemed unfit to sponsor.

New subregulation 1.20DA(2C) provides that for the purposes of new subparagraphs (2A)(a)(ii) and (b)(ii) “officer”, for a corporation, means an officer of the corporation within the meaning of the Corporations Act 2001.

Item [12] – Subregulation 1.20H(1)

This item amends subregulation 1.20H(1) of Part 1 of the Principal Regulations by omitting the words “The Minister must”, and inserting the words “subject to subregulations 1.20H(1A) and (1B), the Minister must”. New subregulations 1.20H(1A) and (1B) are inserted in regulation 1.20H by item [13] of this Schedule.

The effect of this amendment is to make subregulation 1.20H(1) subject to new subregulations 1.20H(1A) and (1B). Subregulation 1.20H(1) requires the Minister to approve a nomination of an activity if the nomination meets certain requirements but this is now subject to new subregulations 1.20H(1A) and (1B). For details of the operation of the new subregulations, please see the notes on item [13] of this Schedule.

Item [13] – After subregulation 1.20H(1)

This item inserts new subregulations 1.20H(1A) (1B) and (1C) after subregulation 1.20H(1) in Part 1 of the Principal Regulations.

New subregulation 1.20H(1A), to which subregulation 1.20H(1) is made subject by the amendment made by item [12] of this Schedule, and which is subject to new subregulation 1.20H(1B) below, provides that the Minister must not approve a nomination if the Minister is aware that adverse information is known about the business background of the sponsor or certain persons connected with the sponsor, or if the Minister is aware that the sponsor, or certain persons connected with the sponsor, is under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsor, or any individual who is a member of a partnership or unincorporated association that is one of the entities that constitute the sponsor.

New subregulation 1.20H(1B) provides that despite new subregulation 1.20H(1A), the Minister may approve the nomination if he or she considers it reasonably appropriate to do so. The effect of new subregulation 1.20H(1B) is that the bar placed on approval of nomination by new subregulation 1.20H(1A) may be overridden in circumstances where the Minister considers it reasonably appropriate to do so.

Circumstances under which it may be reasonably appropriate for the Minister to approve the nomination, despite adverse information about the business background of the sponsor or an investigation for breach of an undertaking or non-compliance with Australian law, could include a situation where the relevant adverse information or potential outcome of the investigation would not, in the Minister’s opinion, result in the sponsor being deemed unfit to continue to sponsor.

New subregulation 1.20H(1C) provides that for the purposes of subparagraphs (1A)(a)(ii) and (b)(ii) “officer”, for a corporation means an officer of the corporation within the meaning of the Corporations Act 2001.

Item [14] – Schedule 2, subclause 457.111(1), after definition of approved business sponsor

This item inserts a definition of “officer” in subclause 457.111(1) of Part 457 of Schedule 2 to the Principal Regulations. For the purposes of Subclass 457 (Business (Long Stay)), “officer”, for a corporation, is defined to mean an officer of the corporation within the meaning of the Corporations Act 2001. The term “officer” is used in new paragraphs 457.223(4)(i) and (j), 457.223(5)(k) and (l), and 457.324B(a) and (b), inserted in Subclass 457 by items [16], [18] and [20] of this Schedule.

Item [15] – Schedule 2, paragraph 457.223(4)(i)

This item omits the words “the Act.” from paragraph 457.223(4)(i) of Part 457 of Schedule 2 to the Principal Regulations, and inserts the words “the Act; and”. This amendment is consequential to the amendment made by item [16] of this Schedule which adds new paragraphs 457.223(4)(j) and (k) in subclause 457.223(4).

Item [16] – Schedule 2, after paragraph 457.223(4)(i)

This item inserts new paragraphs 457.223(4)(j) and (k) in subclause 457.223(4) of Part 457 of Schedule 2 to the Principal Regulations.

New paragraph 457.223(4)(j), which is subject to new subclause 457.223A inserted by item [19] of this Schedule, below, inserts additional primary criteria to be satisfied by applicants subject to subclause 457.223(4) that the Minister must be satisfied that nothing adverse is known about the business background of the sponsor (mentioned in paragraph 457.223(4)(i)) or certain persons connected with the sponsor.

New paragraph 457.223(4)(k), which is also subject to new subclause 457.223A inserted by item [19] of this Schedule, below, inserts a further additional primary criterion that the Minister must be satisfied that the sponsor mentioned in paragraph 457.223(4)(i) and certain persons connected with the sponsor, are not under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons connected with the sponsor to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsor, or any individual who is a member of a partnership or unincorporated association that is one of the entities that constitute the sponsor.

Item [17] – Schedule 2, paragraph 457.223(5)(j)

This item omits the words “the Act.” from paragraph 457.223(5)(j) of Part 457 of Schedule 2 to the Principal Regulations, and inserts the words “the Act; and”. This amendment is consequential to the amendment made by item [18] of this Schedule which adds new paragraphs 457.223(5)(k) and (l) in subclause 457.223(5).

Item [18] – Schedule 2, after paragraph 457.223(5)(j)

This item inserts new paragraphs 457.223(5)(k) and (l) in subclause 457.223(5) of Part 457 of Schedule 2 to the Principal Regulations.

New paragraph 457.223(5)(k), which is subject to new subclause 457.223A inserted by item [19] of this Schedule inserts additional primary criteria to be satisfied by applicants subject to subclause 457.223(5) that the Minister must be satisfied that nothing adverse is known about the business background of the sponsor (mentioned in paragraph 457.223(5)(j)) or certain persons connected with the sponsor.

New paragraph 457.223(5)(l), which is also subject to new subclause 457.223A inserted by item [19] of this Schedule inserts a further additional primary criterion that the Minister must be satisfied that the sponsor mentioned in paragraph 457.223(5)(j) and certain persons connected with the sponsor, are not under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons connected with the sponsor to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsor, or any individual who is a member of a partnership or unincorporated association that is one of the entities that constitute the sponsor.

Item [19] – Schedule 2, after clause 457.223

This item inserts new clause 457.223A in Part 457 of Schedule 2 to the Principal Regulations.

New clause 457.223A provides that the Minister may waive any of the requirements of new paragraphs 457.223(4)(j) or (k) or new paragraphs 457.223(5)(k) or (l), if he or she considers it reasonably appropriate to do so. The requirements that may be waived relate to adverse information being known about the business background of the sponsor (or certain persons connected with the sponsor), the sponsor (or certain persons connected with the sponsor) being under investigation in relation to an allegation of breach of a sponsorship undertaking or of a law of the Commonwealth or of a State or a Territory.

Circumstances under which it may be reasonably appropriate for the Minister to waive the requirements of clause 457.324B, despite adverse information about the business background of the sponsor or an investigation for breach of an undertaking or non-compliance with Australian law, could include a situation where the relevant adverse information or potential outcome of the investigation would not, in the Minister’s opinion, result in the sponsor being deemed unfit to continue to sponsor.

Item [20] – Schedule 2, after clause 457.324A

This item inserts new clauses 457.324B and 457.324C in Part 457 of Schedule 2 to the Principal Regulations. New clauses 457.324B and 457.324C prescribe additional secondary criteria to be satisfied by relevant applicants for a Subclass 457 (Business (Long Stay)) visa. New clause 457.324B is subject to new clause 457.324C.

New paragraph 457.324B(a) inserts a criterion the Minister must be satisfied that nothing adverse is known about the business background of the sponsor mentioned in clause 457.324A, or certain persons connected with the sponsor.

New paragraphs 457.324B(b), (c) and (d) inserts further additional secondary criteria that the Minister must be satisfied that the sponsor mentioned in clause 457.324A certain persons connected with the sponsor, are not under investigation or subject to legal action in relation to an alleged breach of a sponsorship undertaking or an alleged breach of a law of the Commonwealth or of a State or a Territory.

The persons connected with the sponsor to whom the adverse information, or the investigation or legal action, may relate are officers or other senior or responsible persons of any of the entities that constitute the sponsor, or any individual who is a member of a partnership or unincorporated association that is one of the entities that constitute the sponsor.

New clause 457.324C provides that the Minister may waive any of the requirements of new clause 457.324B if he or she considers it reasonably appropriate to do so.

Circumstances under which it may be reasonably appropriate for the Minister to waive the requirements of clause 457.324B, despite adverse information about the business background of the sponsor or an investigation for breach of an undertaking or non-compliance with Australian law, could include a situation where the relevant adverse information or potential outcome of the investigation would not, in the Minister’s opinion, result in the sponsor being deemed unfit to continue to sponsor.